\ 


R.    H.    F.    VARIEL 

ATTORNEY  AT  LAW 

LOS  ANQCLBS,  CAL. 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A  TREATISE 


LAW  OF  JUDGMENTS. 


INCLUDING  ALL  FINAL  DETERMINATIONS  OF  THE  RIGHTS 

OF  PARTIES  IN  ACTIONS  OR   PROCEEDINGS 

AT  LAW  OR  IN  EQUITY. 


By  a.  C.  freeman, 

COUNSELOR  AT  LAW. 


FOURTH  EDITION,  REVISED  AND  GREATLY  ENLARGED. 


IN  TWO  VOLUMES. 
Vol.  1. 


SAN   FRANCISCO: 
BANCROFT-WHITNEY    COMPANY, 

Law  Publishers  and  Law  £ooKS£LL£as, 

1892. 


r 


Entered  according  to  Act  of  Congress,  in  the  year  1873, 

By  a.  L.  BANCROFT  &  COMPANY, 

In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  Act  of  Congress,  in  the  year  1874, 

By  a.  L.  BANCROFT  &  COMPANY, 

In  the  oflSce  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  Act  of  Congress,  in  the  year  1881, 

By  a.  L.  BANCROFT  &  COMPANY, 

In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


Copyright,  1892, 
By  Banckoft-Whitney  Company. 


San  Francisco: 

The  Fii.mer-Rollins  Electrotype  Company, 

Typographers  and  STEEEOTYpaxis. 


PREFACE. 


The  author  of  this  book  believes  that  its  publication  is  amply- 
justified  by  the  importance  of  the  subject  of  which  it  treats,  by 
the  frequency  with  which  a  correct  understanding  of  that  sub- 
ject is  essential  to  a  proper  and  consistent  administration  of 
the  law,  and  by  the  absence  of  any  other  work  which  even  pro- 
fesses to  treat  of  the  matters  considered  in  this. 

A  judgment  is  not  invariably  "  the  end  of  the  law."  Perhaps 
nothing  so  fairly  demonstrates  the  persistence  of  litigants  as 
their  constant  efforts  to  escape  the  consequences  of  prior  de- 
feats. Scarcely  a  terra  passes  in  any  of  the  courts  of  last  re- 
sort, in  this  country  or  in  England,  in  which  it  does  not  become, 
necessary  to  determine  the  effect  of  some  prior  adjudication 
An  examination  of  the  reports  will  convince  any  one  that  there 
are  but  few"  branches  of  the  law  which  had  been  more  fre- 
quently before  the  courts  than  the  Law  of  Judgments. 

Whoever,  for  the  first  time,  gives  his  special  attention  to  this 
branch  of  the  law  will  be  less  surprised  at  the  number  of  the 
decisions  than  at  the  assurance  with  which  the  most  irreconcil- 
able conclusions  have  been  announced.  Cases  have  frequently 
been  disposed  of  in  accordance  with  principles  which  the 
court  evidently  regarded  as  indisputable,  but  which,  in  fact, 
were  in  direct  conflict  with  the  law  as  understood  in  most  of 
the  other  states.  Nor  can  this  be  deemed  remarkable,  when 
we  remember  that  no  attempt  had  been  made  to  collate  the 
various  decisions  constituting  the  Law  of  Judgments. 

This  work,  though  not  formally  subdivided  in  that  manner, 
consists  of  seven  parts:  Part  first,  including  chapters  one  to 
seven,  shows  of  what  the  Record  or  Judgment  Roll  is  com- 
posed, and  states  the  various  classifications  and  definitions  of 
Judgments  and  Decrees,  and  the  rules  applicable  to  Entries 


IV  PREFACE. 

and  Amendments,  and  to  the  Vacation  of  Judgments  at  Com- 
mon Law  and  under  the  Code.  Part  second,  consisting  of  the 
eighth  chapter,  is  devoted  to  the  law  in  regard  to  Jurisdictional 
Inquiries  in  collateral  proceedings.  The  ninth  and  tenth 
chapters  constitute  the  third  part,  and  are  designed  to  show 
what  persons  are  bound  by  the  judgment,  by  reason  of  their 
privity  with  the  parties,  or  their  interest  in  the  subject  of  liti- 
gation, or  through  the  operation  of  the  law  of  lis  pendens.  Part 
fourth  treats  of  the  important  incidents  attending  judgments, 
viz.:  Merger,  Estoppel,  and  Lien;  of  the  assignable  qualities  of 
judgments,  and  of  their  admissibility  as  evidence.  Part  fifth 
considers  proceedings  to  revive  judgments  scire  facias,  and  to 
enforce  them  as  causes  of  action  or  defense,  with  the  rules  of 
pleading  applicable  to  those  proceedings.  The  sixth  part 
contains  the  chapters  on  Relief,  Reversal,  and  Satisfaction; 
showing  for  what  causes  a  judgment  may  be  avoided  in  equity, 
what  are  the  eflFects  of  its  reversal  by  some  appellate  tribu- 
nal, and  what  are  the  means  and  circumstances  which  pro- 
duce its  satisfaction.  The  seventh  and  last  part  treats  of  the 
different  kinds  of  judgments,  and  the  rules  peculiar  to  each. 

In  the  hope  that,  at  least  by  its  arrangement  and  citation  of 
authorities,  it  may  aid  in  the  proper  determination  of  cases  yet 
to  arise,  and  may,  by  producing  a  more  thorough  knowledge 
of  the  law,  assist  in  the  prevention  of  needless  litigation,  this 
work  is  respectfully  submitted  to  the  members  of  that  profes- 
sion for  whose  benefit  it  was  prepared. 

Sacramento,  Oal.,  January,  1873. 


PREFACE    TO    SECOIN^D   EDITI0:N'. 


The  author  has  endeavored  to  merit  the  kindness  with  which 
the  first  edition  of  this  work  was  received,  by  making  the  sec- 
ond as  complete  as  possible.  To  accomplish  this  result,  he  has 
consulted  a  large  number  of  authorities,  and  has  made  consid- 
erable additions  to  the  text.  Particular  pains  has  been  taken 
to  embody  in  this  edition  the  substance  of  the  decisions  pub- 
lished since  the  completion  of  the  work  as  it  was  first  given  to 
the  world.  The  prior  decisions  have  also  received  attention, 
and  have  repaid  it  by  contributing  materially  to  the  increase 
both  of  the  text  and  of  the  table  of  cases.  The  Canadian 
reports,  which,  until  recently,  were  not  within  the  author's 
reach,  have  also  been  examined,  and  have  been  cited  as  freely 
as  those  of  the  other  American  courts.  From  these  various 
sources  the  number  of  the  citations  has  been  augmented  nearly 
twenty-five  per  cent,  and  it  is  hoped  and  believed  that  the 
value  of  the  work  has  been  increased  in  a  like  ratio. 

Sackamento,  Cal.,  August  1,  1874. 


PREFACE    TO    THIBD    EDITIOIS". 


The  lapse  of  nearly  seven  years  since  the  publication  of  the 
second  edition  of  this  work  renders  necessary  another  edition, 
in  order  that  it  may  not  be  left  too  far  behind  the  most  ad- 
vanced stage  of  the  law.  The  author  has  felt  a  desire  to 
amplify  and  reconstruct  his  former  work;  but  the  press  of 
other  engagements  has  made  this  impossible  except  to  a  very 
limited  extent.  He  has,  however,  added  some  twelve  hundred 
cases  to  the  authorities  cited,  and  has  increased  the  text  about 
one  sixth;  and  in  so  doing,  has  treated  some  topics  not  consid- 
ered in  the  former  editions.  Among  these  topics  are,  what  are 
final  judgments  in  criminal  prosecutions  and  in  intervention 
cases;  the  form  of  judgments  with  respect  to  designating  the 
parties  and  the  relief  granted;  fraud  and  perjury  as  grounds  for 
vacating  judgments  on  motion;  merger  arising  from  prosecu- 
tions and  convictions  in  criminal  cases;  set-off  of  one  judgment 
against  another;  and  an  entire  chapter  on  the  conclusiveness 
of  judgments  when  questioned  on  habeas  corpus.  He  has  also 
given  due  prominence  to  the  recent 'decisions  of  the  Supreme 
Court  of  the  United  States,  by  which  judgments,  whether  foreign 
or  domestic,  seem  to  remain  ever  open  to  collateral  attack  on 
jurisdictional  grounds. 

Sacramento,  Cal.,  June  1,  1881. 


PREFACE    TO   FOURTH   EDITIOIN^. 


When  the  preparation  of  this  edition  was  commenced,  and 
for  some  months  afterwards,  the  author  hoped  and  expected 
that  its  contents,  though  noticeably  greater  than  those  of  the 
previous  edition,  might  still  be  kept  within  the  limits  of  a 
single  volume.  That  they  might  be  so  kept,  he  generally  re- 
frained from  making  extracts  from  the  opinions  of  the  judges, 
and  from  citing  cumulative  authorities  upon  questions  now 
substantially  beyond  controversy.  Nevertheless,  the  work 
grew  until  its  citations  doubled  in  number  those  to  be  found  in 
the  preceding  edition,  and  its  size  increased  in  nearly  the  same 
proportion.  This  increase  is  distributed  so  uniformly,  that  it  is 
dilBcult  to  specify  the  portions  of  the  work  which  have  required 
and  received  special  consideration.  Probably,  however,  the 
question  of  jurisdiction  has  here,  as  elsewhere,  been  the  one 
demanding  the  most  serious  attention;  and  the  author  has 
noticed  with  gratification  that  the  result  of  the  deliberation 
of  the  courts  of  last  resort  during  the  past  decade  has  been  to 
strengthen  tjie  presumptions  in  favor  of  the  jurisdiction  of 
courts  of  record,  and  to  show  that,  notwithstanding  the  decis- 
ion of  the  Supreme  Court  of  the  United  States  in  Pennoyer  v. 
Neff,  the  courts  of  each  State  have  power  to  enforce  obligations 
entered  into  by  non-residents,  to  foreclose  liens  upon  their 
property,  to  make  partition  of  land  of  which  they  are  tenants 
in  common,  and  to  determine,  at  the  instance  of  citizens  of 
the  state,  adverse  claims  made  by  such  non-residents  to  real 
property  situate  within  the  territorial  jurisdiction  of  the  court. 
Special  attention  has  also  been  given  to  the  orders  and  pro- 
ceedings of  courts  having  jurisdiction  of  the  estates  of  dece- 
dents, and  to  partitions  of  real  property  made  in  the  exercise  of 
such  jurisdiction,  and  to  judgments  of  acquittal  or  conviction 


X  PREFACE    TO    FOURTH    EDITION. 

in  criminal  prosecutions,  as  well  as  to  the  effect,  as  against 
citizens  of  a  municipal  corporation,  of  judgments  against  it  in 
actions  wherein  it  is  the  representative  of  public  rights  and 
interests. 

Realizing  that  those  portions  of  a  text-book  which  are  not 
adequately  indexed  remain  substantially  unpublished,  a  new 
and  copious  index  has  been  prepared,  in  which  the  subdivisions 
of  each  topic  are  alphabetically  arranged. 

San  Francisco,  February,  1892. 


TABLE    OF    COIsrTElSrTS. 


N.  B.  —For  more  complete  statement  of  contents,  see  the  synopsis  at  the  head  of  each 

chapter. 


CHAPTER  I. 

DEFINITIONS    AND    CLASSIFICATIONS     OF     JUDGMENTS    AND 

DECREES.  SECTIONS. 

Final  and  Interlocutory  Judgments  within  the  Meaning  of  Statutes 

Allowing  Appeals 1-35 

CHAPTER   n. 

THE   ENTRY   OF   JUDGMENTS. 

Is  a  Ministerial  Act  —  Distinction  between  Judgments  and  Decrees 

—  Time  of  Entry — Judgment-book  —  Joint  Parties  —  Construc- 
tion of  the  Entry  —  Form  —  Designating  Parties,  Amount,  Prop- 
erty —  Judgments  of  Conviction  —  Examples  of  Insufficient 
Entries  —  Justices'  Courts 37-55 

CHAPTER   in. 

NUNC    PRO    TUNC    ENTRIES. 

Part  I.  —  Where   No    Judgment   has    been    Ordered  or    Entered. 
Part  II.  —  Where  Judgment  has  been  Ordered  but  not  Entered 

—  Effect  of 56-68 

CHAPTER   IV. 

AMENDING   JUDGMENTS. 
Time  when  may  be  Made  —  Data  for  —  Practice  —  Effect  of  —  Discre- 
tion of  Court 69-74  a 

CHAPTER   V. 

THE   RECORD   OR   JUDGMENT    BOLL. 

Origin  —  Verity  —  Of  What   Composed  —  Absence   of  —  Replacing 

Lost  —  Supplying  Omissions  in 75-89  b 


XU  TABLE    OF    CONTENTS. 

CHAPTER   VI. 

VACATING   JUDGMENTS.  sections. 

At  Common  Law  —  By  Writs  of  Error,  Coram  Nobis,  and  Coram 

Vobis  —  A  udita  Querela  —  Causes  for  —  Notice  —  Effect  of 90-104  b 

CHAPTER  VII. 

VACATION  OF  JUDGMENTS  UNDER  STATUTES  ON  ACCOUNT 
OF  MISTAKE,  INADVERTENCE,  SURPRISE,  OR  EXCUS- 
ABLE  NEGLECT. 

Summary  of  Statutory  Grounds  for  —  Discretion  of  Court  —  Prac- 
tice in  Proceedings  for  —  Fraud,  Perjury,  Neglect,  Mistake, 
Surprise,  Unavoidable  Casualty,  and  Misfortune 105-115  a 

CHAPTER  VIII. 

VOID    JUDGMENTS, 

Inquiries  in  Collateral  Proceedings  in  Relation  to  the  Jurisdiction 
of  Courts  of  Record  —  Jurisdiction,  Definition  and  Source  of 

—  Conflicting  Concurrent — Jurisdictional  Findings  and  Pre- 
sumptions —  Process,  Defects  therein  or  in  its  Service  —  Loss 

or  Termination  of  Jurisdiction  —  Disqualified  Judges 116-14S  a 

CHAPTER   IX. 

OP   THE   PERSONS   AFFECTED    BY   JUDGMENTS. 

Part  I.  — Parties,  Who  may  be  —  Married  Women,  Infanta,  Luna- 
tics, Decedents  —  Construction  of  Record  —  Capacity  in  Which 
Bound  —  Second  Action  in  Which  Parties  are  not  the  Same. 
Pakt  II.  —  Of  Privies  —  Privity  Defined  —  Administrators 
and  Executors  —  Principals  and  Agents  —  Assignees,  Bailees, 
Garnishees,  Heirs,  Lessees,  Remaindermen,  Cestuis  que  Trust. 
Part  III.  —  Persons  Bound,  though  neither  Parties'nor  Privies, 
and  when  Notice  is  Required  to  Bind  Them 149-190 

CHAPTER  X. 

LIS    PENDENS. 

Reasons  for  —  Commencement  of  —  Property,  What  and  when 
Bound  by  —  Amended  Pleadings,  Persons  Bound  by  —  Dili- 
gence in  Prosecution  —  Termination  of  —  Territorial  Limits  of.       191-214 

CHAPTER  XL 

MERGER   OR   FORMER   RECOVERY. 

General  Principles  of  —  Causes  of  Action  Affected  by  —  Exceptions 

—  Joint  Obligations  —  Collateral  Securities  —  Tort-feasors  — 
Indivisible  Causes  of  Action  —  Nuisances  —  Bankruptcy  and 
Insolvency  Proceedings 215-245 


TABLE    OF    CONTENTS.  Xlll 

CHAPTER   XII. 

THE    JUDGMENT  AS   AN   ESTOPPEL.  sections. 

Part  L — Nature  and  Extent.  Part  II. — Requisites.  Part 
III.  —  Evidence  to  Establish  or  Rebut.  Part  IV.  —  Matters 
Defendant  need  not  Litigate.  Part  V.  —  Pleading.  Part 
VI.  —  Actions  in  Conflict  with  Prior  Adjudications.  Part  VII. 
—  Judgments  in  Various  Actions,  Real  and  Personal  —  Criminal 
Cases,  and  Probate  Proceedings.  Part  VIII.  —  Motions  and 
Special  Proceedings.     Part  IX. — Miscellaneous  Matters....       246-333 

CHAPTER  XIII. 

IMPEACHING   JUDGMENTS. 

When  Impeachable  and  by  Whom  —  Fraud,  Collusion,  Error,  Ir- 
regularity —  Impeaching  in  Bankruptcy 334-337 

CHAPTER  XIV. 

OF    THE   JUDGMENT    LIEN. 

Part  I.  —  Nature  and  Creation  of.  Part  II.  -r  Estates  and  In- 
terests Aflfected  by.  Part  III.  —  Priority  of.  Part  IV.  — 
Suspension  and  Discharge  of.  Part  V.  —  Extending  and 
Reviving.  Part  VI.  —  For  Future  Advances.  Part  VII.  — 
Of  Foreclosure  Suits.  Part  VIIL  —  Of  Judgments  of  the 
National  Courts ». 338-406 

CHAPTER   XV. 

JUDGMENTS   AS   EVIDENCE. 
Part  I.  —Mode  of  Proof.     Part  II.  —  Admissibility  and  Effect. .       407-420 

CHAPTER  XVI. 

ASSIGNMENT    OF   JUDGMENTS. 

At  Common  Law  —  Mode  and  Form  of  —  Notice  of  —  Rights  of 
Assignee  —  Prior  Assignments  —  Assignments  by  Agents  — 
Effect  of,  and  Rights  Passing  by 421-431 

CHAPTER   XVII. 

ACTIONS    ON    JUDGMENTS. 

When  Sustainable  —  Appeal  —  Defenses  —  Who  may  Bring  —  Sur- 
vivorship —  Interest  Recoverable 432-441 

CHAPTER   XVIII. 

PROCEEDINGS    BY    SCIRE    FACIAS. 

Nature  of  —  Parties  —  Pleadings,  Service  of  —  Defenses  —  Judg- 
ment upon,  and  its  Effect 442-449 


XIV  TABLE    OF    CONTENTS. 

CHAPTER  XIX. 

PLEADING   JUDGMENTS.  sections. 

Part  I.  — General  Form.  Part  II.  —  Averments  of  Jurisdiction. 
Part  III.  —  Description.  Part  IV.  —  Pleas  in  Defense. 
Part  V.  —  Pleas  of  Judgments  of  Other  States 450-461 

CHAPTER   XX. 

SATISFACTION   OP    JUDGMENTS. 

Part  I.  —  By  Payment  —  By  Set-off.  Part  II.  —  Payor's  Right 
to  Subrogation.  Part  III.  —  Satisfaction  by  Proceedings 
under  Execution.    Part  IV. — Proceedings  after  Satisfaction.    462-480  a 

CHAPTER  XXL 

REVERSED   JUDGMENTS. 
Effect  of  Reversal  —  Restitution   between   the   Parties  and  from 

Third  Persona 481-484 

CHAPTER  XXII. 

RELIEF   IN   EQUITY. 

Grounds  for  —  Parties  Who  may  Apply  —  Rights  of  Third  Persons 

—  Negligence  as  a  Ground  for  Denying  Relief ,    484  a-5 1 6 

CHAPTER  XXIII. 

JUDGMENTS  OF  COURTS  NOT  OP  RECORD. 

Distinction  between,  and  Courts  of  Record  —  Jurisdiction  must  be 
Shown  —  No  Presumptions  in  Favor  of  —  Process  and  its  Ser- 
vice —  Officers  Acting  under  Authority  from  —  Uoards,  Per- 
sons, and  Tribunals  Acting  Judicially 517-531 

CHAPTER  XXIV. 

JUDGMENTS   BY   DEFAULT 
Effect  —  Clerk's  Authority  —  Appeal  from  —  Opening 532-542 

CHAPTER  XXV. 

JUDGMENTS   BY   CONFESSION   WITHOUT    ACTION. 
Statutes  and  their  Construction  —  Parties  Who  may  Make  or  Re- 
ceive —  For  What  may  be  Made  —  Statements  —  When  Void 
—  Remedy  to  Correct  —  Effect  of 543-558  a 

CHAPTER  XXVI. 

JUDGMENTS   OF    OTHER    STATES. 

Constitutional  and  Legislative  Provisions  —  Jurisdictional  Inquiries 
and  Recitals  —  Constructive  Service  of  Process  —  Effect  of  — 
Defenses  to  —  Decrees  of  Divorce , 559-587 


TABLE    OF    CONTENTS.  XV 

CHAPTER  XXVII. 

FOREIGN   JUDGMENTS.  sections. 

Jurisdictional  Inquiries  —  Fraud — Conclusiveness  of —  Control  of 
Equity  over  —  Appeal  —  Are  not  Records  —  Foreign  Probate, 
Divorce,  and  Bankruptcy  Proceedings 588-605  e 

CHAPTER  XXVIII. 

JUDGMENTS   IN   REM. 
Definitions    and     Classification  —  Probate    of     Will  —  Grant    of 
Administration  —  Jurisdiction  —  Divorce  —  Decrees    in    Ad- 
miralty    606-618  a 

CHAPTER    XXIX. 

ATTACKS  ON  JUDGMENTS  BY  HABEAS  CORPUS. 
General  Rule  as  to  Conclusiveness  of  Judgments  —  Errors  and  Ir- 
regularities —  Jurisdiction  —  InsufiSciency  of  the  Indictment 
—  Convictions  and  Sentences  not  Warranted  by  Law  —  Acts 
Done  or  Omitted  under  Constitution  and  Laws  of  the  United 
States 61 9-626 


LAW   OF   JUDGMENTS. 


CHAPTER   I. 

Part  I. —'DEFINITIONS  AND    CLASSIFICATIONS. 

§    1.  Lord  Coke's  definition. 

§    2.  Common-law  definition. 

§    3.  Means  of  enforcing. 

§    4.  Is  a  judgment  a  contract? 

§    5.  Classification  with  reference  to  stage  of  the  proceedings. 

§    6.  Classification  with  reference  to  state  of  the  pleadings. 

§§  7,  8.     Various  kinds  of  judgments,  and  how  classified. 

§    9.  Definition  of  a  decree. 

§  10,  Definition  of  a  decree  nisi. 

§  11.  Decree  taken  pro  confvsso. 

§  12.  Classifications  common  to  judgments  and  decrees. 

§  13.  Judgments  in  rem  and  in  personam. 

§  14.  Judgments  under  the  code. 

§  15.  Orders. 

Part  IL— FINAL   JUDGMENTS. 
§  16.     Put  an  end  to  the  suit. 
§  17.     Dismissal  is  a  final  judgment. 
§  18.     Vacating  another  judgment. 
§19.     Judgment  of  condemnation. 
§  20.     Settle  all  issues. 
§  21.     Are  not  always  final  adjudications. 
§  21  a.     In  criminal  prosecutions. 
§  21  b.     Dismissing  attachment  proceedings, 
?  21  c.     Denying  right  to  inter\'ene. 
§  22.     Final  adjudications  in  equitable  proceedings. 
§  23,     May  contain  directions  t»  be  executed. 
§  24.     May  require  future  orders  of  the  court. 
§  25.     Requiring  transfer  of  property. 
§  26.     Requiring  delivery  of  property. 
§  27.     Must  be  final  as  to  all  the  defendants. 
§  C8.     Decrees  final,  though  reserving  questions. 
§  29.     Interlocutory  decrees  defined  and  classified. 
§  30.     Interlocutory,     Provisional  decrees  or  judgments. 
§31.     Interlocutory.     Granting  temporary  or  alternative  relief. 
JUDQ.  L— 1 


§§  1,  2  DEFINITIONS    AND    CLASSIFICATIONS.  2 

§  32.     Interlocutory.     Settling  questions  preliminary  to  final  relief. 

§  32  a.     Interlocutory,     Leaving  issues  unsettled. 

§  32  b.     Interlocutory.     Orders  for  custody  and  maiiagement  of  property. 

§  32  c.     Interlocutory.     Vacating  or  reversing  judgments,  decrees,  and  orders. 

§  33.     Appeals  unnecessary  not  permitted. 

§  34.     Judgments  appealable. 

§  35.     Exceptions  to  rule  of  appeaL 

Part  I.  —  DEFINITIONS  AND   CLASSIFICATIONS. 

§  1.  Lord  Coke's  Definition.  —  One  who  sought  to 
dignify  everything  connected  with  the  common  law 
characterized  judgments  as  "the  very  voyce  of  law  and 
right."  ^  This  language,  however  distant  from  the  truth 
in  individual  cases,  is,  when  applied  to  the  aggregate,  but 
a  slight  exaggeration.  A  judgment  is  the  end  of  the  law.^ 
It  finally  terminates  the  disputes  and  adjusts  the  adverse 
interests  of  mankind.  That  it  may  in  truth  be  the  "voyce 
of  right,"  legislators  strive  to  make  the  law  more  in  unison 
with  the  dictates  of  justice;  judges  distinguished  for 
learning,  probity,  and  wisdom  are  called  to  the  bench; 
and  the  principles  educed  from  successive  ages  of  legal 
altercation  are  carefully  treasured  for  the  benefit  of  the 
present  and  of  the  coming  generations.  Every  judgment 
directly  enforces  some  right  or  suppresses  some  wrong, 
thereby  producing  the  end  sought  by  every  humanely  con- 
ceived law.  Its  incidental  results,  extending  far  beyond 
the  time  at  which  it  is  pronounced,  and  the  parties  whose 
rights  it  determines,  attach  themselves  to  property  or  to 
privies  in  blood  or  in  estate,  and  continue  in  binding 
force  and  obligation  for  indefinite  periods  of  time. 

§2.  Common-law  Definition.  —  A  judgment,  except 
where  the  signification  of  the  word  has  been  changed  by 
statute,  is  defined  as  being  "the  decision  or  sentence  of 
the  law  pronounced  by  a  court  or  other  competent  tribunal 
upon  the  matter  contained  in  the  record";^  or  as  "the 

^  Co.  Litt.  39  a.  definition    that   a   judgment   may   be 

2  Blystone  w.  Blystone,  51  Pa.  St.  373.  pronounced     by     "other     competent 

'  Jacob's  Law  Diet.;  3  Bla.  Com.  395;  tribunals"    as     well     as     by    courts, 

uEtna  Ins.  Co.  v.  Swift,   12  Minn.  437.  Many  of    such  tribunals  are  euuuier- 

It  will  be  observed   from  the   above  ated  in  section  531. 


3  DEFINITIONS    AND    CLASSIFICATIONS.  §  3 

conclusion  of  the  law  upon  facts  found  "  by  the  court  or 
the  jury,  **  or  admitted  by  the  parties";^  "the  conclusion 
of  law  in  a  particular  case  announced  by  the  court";'' 
"  the  final  consideration  and  determination  of  a  court  of 
competent  jurisdiction  upon  the  matters  svibmitted  to  it"; 
"  the  determination  of  the  law  as  the  result  of  proceedings 
instituted  in  a  court  of  justice."  *  In  some  instances, 
courts  have  employed  language  indicating  that  an  adju- 
dication, though  final,  is  not  a  judgment,  if  the  court  in 
making  it  acted  "in  a  summary  way,  and  upon  a  matter 
addressed  to  their  discretionary  jurisdiction."''  We  ap- 
prehend, however,  that  the  idea  intended  to  be  expressed 
was,  not  that  such  adjudication  is  not  a  judgment,  but 
that  because  it  results  from  the  exercise  of  a  "  discretion- 
ary jurisdiction,"  appellate  courts  will  not  undertake  to 
review  it.  The  language  of  a  judgment  is,  not  that  it  is 
decreed  or  resolved,  but  that  it  is  considered  that  the 
plaintiff  recover,  or  that  the  defendant  go  without  day. 
The  reasons  announced  by  the  court  to  sustain  its  de- 
cision ^  and  the  award  of  execution  to  produce  satisfaction 
constitute  no  part  of  the  judgment.  "At  law,  the  judg- 
ment is  yea  or  nay,  for  one  party  and  against  the  other; 
and  recognizes  no  liens,  awards  no  execution,  against 
specific  property,  unless  when  the  proceeding  is  in  rem; 
but  simply  contains  the  conclusion  of  "the  law  upon  the 
facts  proved,  and  leaves  the  party  to  his  legal  and  appro- 
priate writ  to  enforce  it."^ 

§  3.     Means    of    Enforcing.  —  The    law   provides    the 
means  of  enforcing  judgments.     No  court  has  authority 

>  Tidrl's    Practice,    930;    Truett  v.  Craddock  v.  Croghan,   1  Sneed  (Ky.) 

Lege;,  32  Md.  147.  100. 

■' Little  Pittslnirg  Consolidated  Min-  ^  Burk    v.  Table    Mountain  Co.,   12 

ing  Co.   V.  Little    Chief    Consoliilated  Cal.  408;  Davidson  v.  Carroll,  23  La. 

Mining    Co.,   11  Col.   223;  7  Am.   St.  Ann.  108. 

Rep.  226.  '  Kramer  v.  Rebman,  9  Iowa,  114. 

-  Wliitwell  V.  Emory,  3  Mich.  84;  59  A  judgment  sliould  he  a  simple  sen- 
Am.  Dec.  2'JO.  tfehce  of   the  law,   upon   the  ultimate 

*  Mahoning  Bank's  Appeal,  32  Pa.  facts   admitted    by    the    pleadings    or 
St.  100.  found  by  the  court:  Gregory  v.  Nel- 

*  Claggett  V.  Simes,  25  N.  H,  402;  son,  41  Cal.  278. 


§  4  DEFINITIONS    AND    CLASSIFICATIONS.  4 

to  assume  legislative  powers  hj  providing  other  means. 
Decisions  made  in  some  of  the  states  proceed  upon  the 
theory  that  if  any  court,  acting  solely  under  authority 
conferred  by  the  common  law,  should  add  to  its  judgment 
an  order  requiring  satisfaction  to  be  made  in  any  other 
way  or  by  any  other  means  than  those  provided  by  law, 
as  by  requiring  payment  to  be  made  in  a  particular  kind 
of  money,  the  appellate  court  would  strike  such  order  out/ 
A  different  conclusion  has,  however,  been  sustained  by 
the  highest  tribunals  of  several  other  states;  and  there  is 
now  a  decided  preponderance  of  the  authorities  affirming 
the  existence  of  the  power  to  enter  judgment  for  coined 
dollars,  and  to  enforce  it  by  an  execution  payable  in  the 
same  kind  of  money .^ 

§  4.  Is  a  Judgment  a  Contract?  —  That  a  judgment  is 
a  contract,  or  in  the  nature  of  a  contract,  has  been  af- 
firmed^ and  denied^  with  equal  confidence.  On  one  hand, 
it  is  urged  as  conclusive  that  each  judgment  creates  an 
obligation  capable  of  being  enforced  by  an  action  of  debt 

'  Reed   v.    Eldredge,    27    Cal.    348;  428;    47    Am.    Rep.    64;   Biddeson  v. 

Whitstone  v.  CoUey,  36  III.  328;  Bur-  Whytel,  3  Burr.  1545;  Chase  v.  Curtis, 

ling  V.  Goodman,  1  Nev.  314;  Olanyer  113  U.  S.  452;  Rae  v.  Hulbert,  17  111. 

V.  Blanchard,  18  La.  Ann.  616;  Buch-  572;  Todd  v.  Crumb,  5  McLean,  172; 

egger  r.  Schultz.  13  Mich.  420.  Wyman    v.     Mitchell,    1     Cow.     321; 

^  Bronson  v.  Rodes,  7  Wall.  229;  Smith  v.  Harrison,  33  Ala.  706;  Keith 
Emery  v.  Langley,  1  Idaho,  N.  S.,  694;  v.  Estill,  9  Port.  669;  Masterson  v. 
Chesapeake  v.  Swain,  29  Md.  483,  506;  Gibson,  56  Ala.  56;  Larrabee  v.  Bald- 
Paddock  V.  Com.  Ins.  Co.,  104  Mass.  win,  35  Cal.  156.  This  last  case  ap- 
521;  Cheang  Kee  v.  United  States,  3  plies  to  "contracts"  as  term  is  used  in 
Wall.  320;  Butler  v.  Horwitz,  7  Wall,  act  fixing  liability  of  stockholders  of 
258;  Ind.  Ins.  Co.  v.  Thomas,  104  corporations.  "  A  judgment  is  not  in 
Mass.  192;  Kellogg  v.  Sweeney,  46  itself  a  contract":  In  re  Kennedy,  2 
N.  Y.  291;  17  Am.  Rep.  333;  Hittson  S.  C.  226.  "Strictly  speaking,  a 
V.  Davenport,  4  Col.  16J;  Trebilcock  w.  judgment  is  a  contract,  and  of  that 
Wilson,  12  Wall.  687;  Dewing?;.  Sears,  class  of  contracts  called  specialties; 
11  Wall.  379.  but  the  word  contract  is  not  ordina- 

^  Morse    ik    Toppan,    3   Gray,    411;  rily  used  in  a  sense  that  includes  judg- 

Sawyer  v.  Vdas,  19  Vt.  43;  Taylor  v.  ments;  nor  is  it  generally  so  used  by 

Root,  4   Keyes,   344;    Farmers'  &  M,  law-writers,  nor  is  it  so  used  in  section 

Bank".  Mather,  30  Iowa,  283;  Stuart  20  of  the  Code  of  Civil  Procedure": 

V.  Landers,  16  Cal.  372;  76  Am.  Dec.  Burnes   v.   Simpson,   9    Kan.    658;    12 

6?.S;    McGuire  v.  Gallagher,   2    Sand.  Am.  Law   Reg.   59.     A  judgment   is 

402.  not  a  specialty  as  that   term  is  used 

*  Sprott  u.  Reid,  3  Iowa,  489;  5^1  Am.  in  the  statute  of  limitations:   Tyler's 

Dec.  549;  O'Brien  v.  Young,  US  N.  Y.  Ex'rs  v.  Wiuslow,  15  Ohio  St.  364. 


■5  DEFINITIONS    AND    CLASSIFICATIONS.  g  4 

or  assumpsit,  according  to  the  nature  of  the  judgment; 
that  this   obligation  is  based  upon   an  implied   promise 
entered  into  by  every  member  of  society  that  he  will  pay 
all  judgments  which  may  be  rendered  against  him,  in 
consideration  that  the  courts  will  assist  him  in  preserving 
and  regaining  his  rights.     On  the  other  hand,  it  is  said, 
with  equal  truth,  that  every  man  who  commits  a  tort  im- 
pliedly agrees,  in  consideration  of  the  harm  done  by  him, 
and  the  injur}'-  occasioned  by  his  misconduct,  to  pay  all 
damages  which  his  wrong  produces;  and  that  the  same 
implied  premises  necessary  to  prove  that  a  judgment  is  a 
contract  may  be  used  with  equal  justness  and  efficiency 
to  establish  the  same  thing  of  every  conceivable  cause  of 
action.     All  authorities  assert  that  the  existence  of  parties 
legally  capable  of  contracting  is  essential  to  every  con- 
tract.    But  a  decided  preponderance  of  authority  recog- 
nizes   judgments    entered    against    lunatics    and    others 
incapable  in  law  of  contracting  as  conclusively  binding 
until  vacated  or  reversed.     It  seems,  then,  that  in  order 
to  prove  that  a  judgment  is  in  the  nature  of  a  contract, 
we  must  supply  two  of  the  three  essentials  of  each  contract 
by  implication,  and  the  third  by  some  means  not  yet  dis- 
covered.    The  question  whether  or  not  a  judgment  is  a 
contract  is  sometimes  of  great  practical  importance,  and 
may  be  decisive  of  the  case  before  the  court.     Thus  a  stat- 
ute may  have  been  enacted  seeking  to  impair  the  effect  of 
a  judgment,  and  which,  if  the  judgment  is  a  contract,  will 
be  inoperative  because  prohibited  by  the  clause  in  the  con- 
stitution of  the  United  States  forbidding  the  enactment 
by  any  of  the  states  of  laws  impairing  the  obligation  of 
contracts.     If  the  judgment  in  question  was  based  upon  a 
contract,  it  must,  necessarily,  be  protected  from  the  stat- 
ute, because  it  is  but  a  means  of  enforcing  such  contract, 
and  its  obligation  cannot  be  destroyed  or  impaired  with- 
out impairing  or  destroying  the  obligation  of  the  contract. 
Hence  if  a  cause  of  action  is  of  such  a  nature  that  the 
legislature  could  not  have  discharged  or  impaired  it  before 


§  4  DEFINITIONS    AND    CLASSIFICATIONS.  6 

judgment,  it  is  equally  protected  after  judgment.'  There- 
fore statutes  of  a  state  granting  discharges  to  insolvent 
debtors  cannot  affect  judgments  entered  against  them  in 
another  state  upon  causes  of  action  which  were  within 
the  protection  of  the  constitution  of  the  United  States.^ 
If,  however,  a  judgment  is  founded  upon  a  tort,  or  upon 
any  other  cause  of  action  not  entitled  to  protection  as  a 
contract,  such  cause  of  action  is  not  by  the  judgment 
transmuted  into  a  contract,  and  the  judgment  may  there- 
fore  be  impaired  without  violating  the  obligation  of  a 
contract.^ 

Though  it  be  conceded  that  a  judgment  is  not  a  con- 
tract, yet  perhaps  courts  are  justified,  in  some  cases,  in 
treating  it  as  though  it  were  a  contract,  or,  rather,  in  de- 
terminins:  that  the  word  "contract,"  as  used  in  some 
statute,  was  intended  to  include  judgments.  Thus  it  has 
been  held  that  a  code  provision  authorizing  the  union  in 
one  complaint  of  several  causes  of  action,  when  they  all 
arise  out  of  contracts,  expressed  or  implied,  warranted  the- 
joinder  of  two  or  more  judgments  as  causes  of  action;* 
that  a  statute  investing  justices  of  the  peace  with  juris- 
diction over  actions  upon  contracts  for  the  recovery  of 
money  gave  them  authority  to  hear  and  determine  actions 
upon  judgments;^  that  where  a  statute  classifies  actions  as 
being  ex  contractu  or  ex  delicto,  judgments  must  be  treated 
as  falling  within  the  former  class,®  and  therefore  that 
their  owners  are  entitled  to  the  same  remedies  for  their 
collection  as  if  they  were  contracts,  including  the  right  to 
the  issuing  of  writs  of  attachment.'^  On  the  other  hand, 
in  several  of  the  states,  their  courts  have  declined  to  give 
a  signification  to  the  word  "  contract,"  as  used  in  their 

1  Scarborough    v.    Dusan,    10    Cal.  109  U.  S.  285;  State  u.  New  Orleans, 

305:     Weaver    v.    Lj^psley,    43    Ala.  32  La.  Ann.  709. 

224.  *  Childs  r.  Harris  M.  Co., 68  V\"is.  231. 

■^  Bean  v.  Laryea,  81  Cal.  152.  *  Stuart  v.  Landers,  16  Cal.  372;  76 

'  Garrison  v.  City  of  New  York,  21  Am.  Dec.  538. 

Wall.    196;    McAfee  v.   Covington,   71  •*  Moore    v.    Nowell,  94   N.   C.   265; 

Ga.  272;  51  Am.   Rep.   263;  Freeland  Johnson  v.  Butler,  2  Iowa,  545. 

V.  Williams,  131  U.  S.   405;  Sprott  v.  '  Gutta    Percha    &    R.    M.    Co.     v. 

Reid,  3  Iowa,  489;  56  Am.   Dec.  549;  Houston,   108  N.  Y.  276;  2  Am.   St. 

Louisiaaa  v.  Mayor  of  New  Orleans,  Rep.  412. 


7  DEFINITIONS    AND    CLASSIFICATIONS.  §  5 

statutes,  different  from  that  to  which  it  is  entitled  by  the 
weight  of  authority,  and  have  therefore  decided  that  a 
statute  providing  that  a  promise  in  writing,  or  an  actual 
payment,  shall  be  received  as  evidence  of  a  new  and  con- 
tinuing contract  to  repeal  the  statute  of  limitations  does 
not  apply  to  judgments;^  that  a  statute  of  limitations 
prescribing  the  time  within  which  actions  may  be  brought 
upon  any  loan  or  contract  does  not  control  actions  on 
judgments;^  that  an  assignee  of  a  judgment  is  not  entitled 
to  bring  suit  thereon  in  his  own  name  under  a  statute 
authorizing  the  indorsement  of  contracts  in  writing  for 
the  payment  of  money  so  as  that  action  may  be  brought 
thereon  in  the  name  of  each  successive  indorsee;^  that  a 
judgment  is  not  a  written  instrument  within  the  meaning 
of  the  statute  requiring  original  instruments,  or  copies,  to 
be  filed  in  actions  founded  thereon,*  nor  within  the 
meaning  of  a  statute  declaring  that  all  contracts  which 
under  the  common  law  are  joint  shall  be  considered  as 
joint  and  several.® 

§  5.  Classification  with  Reference  to  Stage  of  the  Pro- 
ceedings.—  Judgments,  considered  in  reference  to  the 
stage  of  the  proceedings  at  which  they  are  entered,  are  of 
four  sorts: — 

1.  Where  the  facts  are  admitted  and  the  law  disputed, 
as  on  demurrer; 

2.  Where  the  law  is  admitted  and  the  facts  disputed,  as 
in  case  of  verdict; 

3.  Where  both  the  law  and  the  facts  are  admitted,  as  in 
cases  of  confession  or  upon  default; 

4.  Where  the  plaintiff  is  convinced  that  the  facts  or 
the  law,  or  both,  are  insufficient  to  support  his  action,  and 
therefore  abandons  or  withdraws  his  prosecution,  as  in 
judgment  upon  nonsuit  or  retraxit} 

'  McDonald  v.    Dickson,  87   N.  C.  *  Sheehan  and  Loler  Trans    Co    v 

401-  Sims,  28  Mo.  App.  64. 

*  Jordan  v.  Robinson,  15  Me.  163.  «  3  Bla.  (^orn.  :syG;  Jacob's  Law  Diet.; 
»  Lovins  V.  Humphries,  67  Ala.  4.S7.  Derl)y  v.  Jacques,  1  Cliff.  43-_';  Blaikie 

*  Conwell  V.  Coawell,  100  liid.  437.  v.  Griswold,  10  Wis.  293. 


§  6  DEFINITIONS    AND    CLASSIFICATIONS.  8 

This  classification,  though  acquiesced  in  for  a  long 
time,  is  neither  accurately  expressed  nor  correctly  illus- 
trated. There  are  individual  cases  where  the  law  is 
admitted  and  the  facts  disputed,  but  such  cases  do  not 
form  themselves  into  a  distinct  class.  The  law  arising 
upon  a  verdict  is  not  brought  to  the  attention  of  the  court 
by  any  pleading,  yet,  far  from  being  admitted,  it  is  fre- 
quently the  subject  of  animated  and  lengthy  contests,  both 
in  subordinate  and  in  appellate  courts.  Nor  is  it  certain, 
as  implied  by  the  third  subdivision,  that  there  is  any  class 
of  cases  where  both  the  law  and  the  facts  are  admitted. 
A  default  in  no  instance  authorizes  any  judgment  to  be 
rendered  against  the  defendant  unless  a  sufficient  cause  of 
action  is  stated  in  the  complaint.  If  there  is  any  case 
where  the  law  is  admitted  so  as  to  subject  the  defendant 
to  a  judgment  which  would  otherwise  be  regarded  as 
erroneous,  it  must  be  where  a  default,  or  other  confession 
of  facts,  is  accompanied  by  such  circumstances  as  create 
a  presumption  that  he  agreed  to  waive  all  errors.  This 
would  amount  to  an  agreement  to  relinquish  his  right  to 
reverse  a  judgment  unsupported  by  law,  but  not  to  an 
admission  that  the  law,  applied  to  the  undisputed  facts, 
would  properly  result  in  a  judgment  against  him. 

§  6.  Classification  with  Reference  to  State  of  the 
Pleadings.  —  Perhaps  a  better  classification  of  judgments 
would  be  one  made  with  reference  to  the  state  of  the 
pleadings  at  the  time  the  court  makes  its  final  decision. 
Such  a  classification  would  not  diff'er  materially  from  the 
one  heretofore  given;  but  it  could  be  more  simply  and 
clearly  expressed.  According  to  it,  the  classes  would  be 
as  follows:  — 

1.  The  judgment  rendered  where  the  pleadings  pre- 
sented no  other  issue  than  an  issue  of  law. 

2.  The  judgment  rendered  upon  the  decision  of  a  court 
or  a  jury  upon  the  issue  or  issues  of  fact  made  by  the 
pleadings. 


L^ 


DEFINITIONS    AND    CLASSIFICATIONS. 


§7 


3.  The  judgment  given  where  no  issue  has  heen  made 
by  the  party  required  to  plead. 

4,  Where,  before  or  after  the  joining  of  an  issue  of  law 
or  of  fact,  the  plaintiff  abandons  or  withdraws  his  prosecu- 
tion. 

§  7.  Various  Kinds  of  Judgments,  and  how  Classified. 
—  In  the  first  class  of  either  classification  are  included: — 

1.  The  judgment  given  for  the  plaintiff,  when  an  issue 
of  law,  formed  by  a  demurrer  to  any  of  the  pleadings  in 
chief,  is  determined  in  his  favor.  It  is  final,  and  is  called 
a  judgment  g'MOc^  ?'ecMpere^.^ 

2.  The  judgment  given  for  defendant  when  a  like  issue 
is  found  in  his  favor. 

3.  Judgment  of  respondeat  ouster,  a  species  of  interlocu- 
tory judgment  for  the  plaintiff,  on  demurrer  to  a  plea  in 
abatement,  when  it  appears  that  the  defendant  has  mis- 
taken the  law  on  a  point  not  affecting  the  merits  of  the 
case.  By  this  judgment  he  is  allowed  to  plead  such  fur- 
ther defense  as  he  may  have.^ 

4.  The  judgment  given  for  the  defendant  on  a  de- 
murrer to  a  plea  in  abatement,  which  is,  that  the  writ  be 
quashed. 

In  the  second  class  are  included: — 

1.  The  judgment  for  plaintiff  upon  an  issue  of  fact 
found  in  his  favor. 

2.  The  judgment  of  nil  capiat  per  breve,  or  per  billum, 
when  such  issue  is  determined  in  his  favor. 

3.  Judgment  quod  partes  replacitent.  This  is  given  if 
an  issue  be  formed  and  a  verdict  returned  on  so  imma- 
terial a  point  that  the  court  cannot  know  for  whom  to 
give  judgment.  The  parties  must  then  reconstruct  their 
pleadings,  beginning  at  the  first  fault  which  occasioned 
the  immaterial  issue. 

1  Hale  V.  Lawrence,  22  N.  J.  L.  72.  Heyfrom    v.    Miss.    Union    Bank,    7 
*  At   the    present    time    this   is  tlie  Smedes  &  M.   434;  Randolph  v.   Sin- 
judgment  usually  entered,  instead  of  gleton,  1.3  Smedes  &  M.  43ih  Trow  v. 
a  judgment  quod  recuperet,  on  overrul-  Messer,  .32  N.  H.  361;  Cooke  r>.  Craw- 
ing  a  demurrer  to  plaintiff's  complaint:  ford,  1  Tex.  9;  4(j  Am.  Dec.  93. 


§  7  DEFINITIONS   AND   CLASSIFICATIONS.  10 

The  third  class  includes:  — 

1.  Judgment  nihil  dicit,  rendered  whenever  the  defend- 
ant fails  to  plead  to  the  plaintitf's  declaration  in  the  time 
allowed  for  him  to  do  so.  This  judgment  is  proper,  al- 
though the  defendant  who  fails  to  plead  in  time  may  have 
appeared  by  attorney.^ 

2.  Judgment  non  sum  informatus  is  the  one  rendered 
when  the  defendant  enters  upon  the  record  that  he  is  not 
informed  of  any  defense  to  the  action. 

3.  Judgment  by  confession  relida  verijicatione,  entered 
when  the  defendant  either  confesses  the  action  in  the  first 
instance,  or  when,  after  pleading,  he,  before  trial,  aban- 
dons his  plea. 

4.  The  judgment  non  obstante  veredicto.  This  is  ren- 
dered when  the  plea  confesses  a  cause  of  action,  and  the 
matter  relied  upon  in  avoidance  is  insufficient,  although 
found  true,  to  constitute  either  a  defense  or  a  bar  to  the 
action.^  This  judgment  can  be  entered  only  on  the  appli- 
cation of  the  plaintiff,^  made  after  the  verdict,  and  before 
the  entry  of  judgment  thereon.*  The  defendant  was  not, 
at  the  common  law,  entitled  to  this  judgment  under  any 
circumstances.  If  a  verdict  for  the  plaintiff  was  not  sup- 
ported by  the  pleadings,  the  remedy  of  the  defendant  was 

'  Stewart  v.    Goode,    29   Ala.    476;  in  arrest:  Bellows  v.  Shannon,  2  Hill, 

citing  6  Comyn's  Dig.  147.  86. 

*  Dewey  v.  Humphrey,  5  Pick.  1S7;  *  Harrison  v.  G.  N.  R'y  Co.,  11  Com. 
Fitch  V.  Scot,  1  Root,  351;  Bellows  v.  B.  542;  21  L.  J.  Com.  P.  16;  Beaty  v. 
Shannon,  2  Hill,  86;  State  i\  Commer-  Warren,  4  Madd.  &  G.  158;  4  Scott 
cial  Bank,  6  Smedes  &  M.  218;  45  Am.  N.  R.  725;  State  v.  Bank,  6  Smedes  & 
Dec.  280;  SuUeuberger  v.  Gest,  14  M.  218,  on  authority  of  2  Tidd's  Prac- 
Ohio,  204;  Pim  v.  Grazebrook,  2  Com.  tice,  840.  As  to  cases  where  this  judg- 
B.  429;  3  Dowl.  &  L.  454;  Moye  v.  ment  may  be  given,  see  Shepherd  v. 
Petway,  76  N.  C.  327;  Oades  v.  Oades,  Halls,  2  Dowl.  453;  Britton  v.  Fisher, 
6  Neb.  304;  Atkinson  v.  Davies,  11  26  U.  C.  Q.  B.  338;  Kerr  v.  Straat,  8 
Mees.  &  W.  236;  2  Dowl.,  N.  S.,  778;  U.  C.  Q.  B.  82;  Madrall  v.  Tliellusen, 
12  L.  J.  Ex.  169;  Berwick  v.  Duncan,  21  L.  J.  Q.  B.,  N.  S.,  410;  Leigh 
3  Kx.  644;  Cook  v.  Pearce,  8  Q.  B.  v.  Lillie,  6  Hurl.  &  N.  165;  Snyder  ?-. 
1044;  Ward  v.  Phillips,  89  N.  C.  Robinson,  .35  Ind.  311;  9  Am.  Rep.  738; 
215.  Lough    V.    Thornton,    17    Minn.    253; 

*  Schermerhorn  v.  Schermerhorn,  5  Morris  v.  Zeigler,  71  Pa.  St.  450; 
Wend.  513;  Smith  v.  Smith,  4  Wend.  Glading  v.  Fnck,  88  Pa.  St.  460; 
468.  The  proper  course  for  a  defend-  Chapman  v.  Holding,  60  Ala.  522;  Pim 
ant  against  whom  judgment  has  been  v.  Grazebrook,  2  Com.  B.  429;  3  Dowl. 
rendered  upon  pleadings  which  will  &  L.  454;  Willoughby  v.  Willoughby, 
not  sustain  a  recovery  is   by  motion  6  Q.  R  722;  9  Jur.  498. 


11  DEFINITIONS    AND    CLASSIFICATIONS.  §  7 

to  move  to  arrest  the  judgment.^  The  party  in  whose 
favor  a  verdict  is  is  not  entitled  to  a  judgment  non  obstante 
veredicto,  under  the  code  of  Indiana.  He  cannot,  hy  mov- 
ing therefor,  obtain  a  judgment  not  warranted  by  his 
verdict.^  In  some  states  the  practice  prevails,  in  certain 
cases,  of  having  the  jury  return  a  general  verdict,  and 
also  to  find  upon  special  issues  submitted  to  them;  and 
where  the  general  verdict  and  the  special  findings  are 
irreconcilable,  to  give  preference  to  the  latter.  Under 
this  practice,  the  party  in  whose  favor  the  special  issues 
are  found  may  move  for  and  obtain  judgment  in  his  favor, 
though  the  general  verdict  is  against  him.^  Such  judg- 
ment, however,  does  not  correspond  to  the  judgment  non 
obstante  veredicto  of  the  common  law.  It  is  not,  as  the 
latter  was,  founded  on  any  defects  in  the  pleadings. 
Moreover,  it  is  not  in  opposition  to  the  verdict;  for,  under 
the  statute,  it  is  the  findings  upon  the  special  issues  which 
must  be  regarded  as  the  verdict,  and  upon  them  the  judg- 
ment must  be  pronounced. 
The  fourth  class  comprises: — 

1.  Judgment  of  non  pros., euiered  against  the  plaintiff, 
before  any  issue  is  joined,  for  not  declaring,  replying,  or 
surrejoining,  or  for  not  entering  the  issue  agreeably  to  the 
rules  of  the  court. 

2.  Judgment  on  nolle  prosequi,  which  is  entered  when 
plaintiff  declares  that  he  will  not  further  prosecute  his 
suit  as  to  the  whole  or  a  part  of  his  cause  of  action,  or  as 
to  some  or  all  of  the  defendants.  Of  a  similar  nature  is 
the  entry  of  a  stet  processus,  by  which  plaintiff  agrees  that 
all  further  proceedings  shall  be  stayed.  This  entry  is 
usually  made  when  the  defendant  becomes  insolvent 
pending  the  action,  and  the  object  is  to  prevent  his  ob- 
taining a  judgment,  as  in  case  of  nonsuit.* 

1  Quimhy  v.  Root,  8  Col.  194;  Smith  ^  Felton  v.  Chicago,  R.  L,  &  R  R.  R. 

V.  Powers,    15  N.    H.   546;  Bovvdre  v.  Co.,   69  Iowa,   577;    Porter  v.   Waltz, 

Hampton,  6  Rich.  208;  Bnckinc;ham  v.  108  Ind.  40;  Cox  v.  Ratcliffe,  105  lud. 

McCracken,  2  Ohio  St.  287;  Bradshaw  374. 

V.  Hedge,  10  Iowa,  402.  *  Tidd's  Practice,  681,  682. 

»  Brown  v.  Searle,  104  Ind.  218. 


§  8  DEFINITIONS    AND    CLASSIFICATIONS.  12 

3.  Judgment  of  retraxit.  This  is  given  when  the  plain- 
tiff, in  person/  voluntarily  goes  into  court  and  enters  on 
the  record  that  he  is  in  nonsuit,  or  that  he  withdraws  his 
suit.  "A  retraxit  differs  from  a  nonsuit  in  this:  one  is 
negative,  and  the  otiier  positive.  The  nonsuit  is  a  mere 
default  or  neglect  of  the  plaintiff,  and  therefore  he  is  al- 
lowed to  begin  his  suit  again  upon  payment  of  costs;  but 
a  retraxit  is  an  open  voluntary  renunciation  of  his  claim 
in  court,  and  by  this  he  forever  loses  his  action."^ 

4.  Judgment  of  nonsuit;  which  is  of  two  kinds,  volun- 
tary and  involuntary.  "When  plaintiff  abandons  his  case 
and  consents  that  judgment  go  against  him  for  costs,  it  is 
voluntary.  But  when  he,  being  called,  neglects  to  appear, 
or  when  he  has  given  no  evidence  on  which  a  jury  could 
find  a  verdict,  it  is  involuntary.  "Where  a  plaintiff  is 
demanded  and  doth  not  appear,  he  is  said  to  be  in  non- 
suit. And  this  usually  happens  where,  on  the  trial,  and 
when  the  jury  are  ready  to  give  their  verdict,  the  plain- 
tiff discovers  some  error  or  defect  in  the  proceedings,  or 
is  unable  to  prove  some  material  point  for  want  of  wit- 
nesses." ^ 

§  8.  Judgment  Capiatur,  Misericordia,  and  in  Actions 
of  Partition  and  Account.  —  The  defendant  who  in  a  civil 
action  was  convicted  of  a  wrong  committed  vi  et  armis 
was  obliged  to  pay  a  fine  to  the  king  for  the  breach  of  the 
peace  implied  in  the  act.  A  judgment  capiatur  was 
entered  against  him,  under  which  he  was  Kable  to  be 
arrested  and  imprisoned  until  the  fine  was  paid.  A  judg- 
ment, sometimes  given  at  common  law,  against  a  party 
for  the  unjust  vexation  occasioned  by  his  action  was 
called  judgment  misericordia.  The  interlocutory  judg- 
ment in  an  action  for  partition  directing  a  partition  to 
be  made  was  called  judgment  quod  partitio  fiat;  while  a 
final  judgment  in  such  action  quod  partitio  facto  firma  et 

»  Thomason  v.  Odum,  31  Ala.  108;  Oilum,  31  Ala.  108;  6S  Am.  Dec. 
68  Am.  Dec.  159.  159. 

2  3  Bla.    Com.    296;    Thomason    v.         »  7  Bac.  Abr.  214. 


13  DEFINITIONS    AND    CLASSIFICATIONS.  §§  9,  10 

stabilis  in  perpetuum  was  entered  after  the  return  of  the 
writ.^  The  interlocutory  judgment  in  an  action  of  ac- 
count compelling  defendant  to  account  was  named  judg- 
ment quod  computet. 

§  9.  Definition  of  Decree.  —  Daniell,  in  his  Practice  in 
the  High  Court  of  Chancery,  says  that  a  "  decree  is  a 
sentence  or  order  of  the  court  pronounced  on  hearing 
and  understanding  all  the  points  in  issue  and  determin- 
ing the  rights  of  all  the  parties  in  the  suit  according  to 
equity  and  good  conscience."^  It  is  to  be  hoped  that 
decrees  generally  conform  to  the  description  here  given 
of  them.  They  are  none  the  less  decrees,  however,  if 
pronounced  without  hearing  or  understanding  the  points 
in  issue.  Neither  is  it  necessary  to  their  existence  or 
validity  that  the  rights  of  the  parties  be  determined 
according  to  equity  and  good  conscience.  The  chief 
diflFerences  between  decrees  in  equity  and  judgments  at 
common  law  are  as  follows:  The  former  are  pronounced 
by  courts  of  equity;  the  latter,  by  courts  of  law.  The 
former  result  from  an  investigation  and  determination 
of  the  rights  of  the  parties  by  the  means  provided  and 
according  to  the  principles  recognized  in  equity  juris- 
prudence; the  latter  result  from  an  investigation  and 
determination  made  by  the  more  limited  means  and 
more  inflexible  rales  of  the  common  law.  The  former 
may  be  adjusted  to  all  the  varieties  of  interest  and  of  cir- 
cumstance, and  may  contain  such  directions  as  are  needed 
to  carry  them  into  effect,  both  in  letter  and  in  spirit;  the 
latter  are  in  an  invariable  form,  general  in  terms,  and 
absolute  for  plaintiff  or  defendant.  And  the  former  often 
enforce  rights  not  recognized  by  the  common  law,  and 
which,  without  the  aid  of  courts  of  equity,  could  be  en- 
forced only  by  the  consciences  of  men. 

§  10.     Decree  Nisi.  —  A  decree  nisi  is  the  decree  given 
under  the  English  practice  when  the  cause  is  called  for 

'  5  Bac.  Abr.  292.  *  4  Daniell's  Chancery  Practice,  1192.. 


§§  11-13        DEFINITIONS    AND    CLASSIFICATIONS.  14 

hearing  and  the  defendant  does  not  appear  to  open  his 
answer.  Upon  proof  of  the  service  of  the  subpoena  to 
hear  judgment,,  the  court  will  enter  such  decree  for  the 
plaintiff  as  his  counsel  may  desire,  accompanying  it  with 
a  clause  to  the  effect  that  it  is  to  be  binding,  unless,  being 
served  with  process,  the  defendant  shall,  within  a  given 
time,  show  cause  to  the  contrary. 

§11.  Decree  Taken  pro  Confesso.  —  A  decree  taken 
pro  confesso  is  one  entered  when  the  defendant  has  made 
default  by  not  appearing  in  the  time  prescribed  by  the 
rules  of  the  court.  A  decree  nisi  is  drawn  by  the  plain- 
tiff's counsel,  and  is  entered  by  the  court  as  it  is  drawn. 
A  decree  where  the  bill  is  taken  pro  confesso  is  pro- 
nounced by  the  court  after  hearing  the  pleadings  and 
considering  the  plaintiff's  equity. 

§  12.  Classifications  Common  to  Both  Judgments  and 
Decrees.  —  Both  judgments  and  decrees,  considered  in 
relation  to  the  jurisdiction  in  which  they  were  rendered, 
are  either  foreign  or  domestic.  Considered  with  regard 
to. their  effect  in  putting  an  end  to  an  action,  they  are 
either  final  or  interlocutory.  Any  judgment  or  decree, 
leaving  some  further  act  to  be  done  by  the  court,  before 
the  rights  of  the  parties  are  determined,  and  not  putting 
an  end  to  the  action  in  which  it  is  entered,  is  interlocu- 
tory. But  if  it  so  completely  fixes  the»  rights  of  the 
parties  that  the  court  has  nothing  further  to  do  in  the 
action,  then  it  is  final.  A  final  judgment  or  decree  may 
merely  dispose  of  the  action,  leaving  the  plaintiff  at  liberty 
to  commence  another  suit  on  the  same  cause,  as  in  case 
of  a  dismissal  or  voluntary  nonsuit  by  the  plaintiff;  or  it 
may,  besides  disposing  of  the  action,  determine  all  the 
issues  involved  in  the  suit,  and  become  a  bar  to  all  other 
suits  between  the  same  parties  in  reference  to  the  same 
subject-matter. 

§13.  Judgments  in  Rem  and  in  Personam. — Judg- 
ments   and    decrees    are    either  in  personam    or  in  rem. 


15  DEFINITIONS    AND    CLASSIFICATIONS.  §  14 

They  are  in  personam  when  the  proceedings  are  against 
the  person,  provided  the  adjudication  be  of  such  a  nature 
as  to  be  binding  only  upon  the  parties  to  the  suit  and 
their  privies  in  blood  or  estate.  Judgments  and  decrees 
in  rem  are  not,  as  the  term  implies,  confined  to  proceed- 
ings where  property  is  proceeded  against  as  a  party  to  the 
action,  but  include,  in  addition  to  adjudications  against 
the  thing,  all  those  decisions  or  sentences  which,  by  the 
policy  of  the  law,  are  binding  upon  all  other  persons  as 
well  as  upon  the  parties  to  the  suit:  The  proceedings 
prior  to  the  judgment  or  decree  may  be  in  personam,  no 
notice  need  be  given  except  to  the  defendant,  yet  if  the 
judgment  affect  the  status  of  any  person  or  of  any  subject- 
matter,  as  in  a  suit  for  divorce,  it  is  conclusive  upon  the 
whole  world,  and  is  therefore  classed  as  being  in  rem. 
The  general  nature  of  this  class  of  judgments,  and  the 
various  definitions  given  by  different  authors,  will  be  con- 
sidered in  a  subsequent  chapter. 

§  14.  Judgments  under  the  Code.  —  The  code  of  pro- 
cedure adopted  by  several  states  providing  that  there 
shall  be  but  one  form  of  civil  actions  defines  a  judgment 
to  be  "  the  final  determination  of  the  rights  of  the  parties 
in  an  action  or  proceeding."  ^  This  definition  is,  in  one 
respect,  more  comprehensive  than  the  one  first  given  in 
this  chapter,  as  it  includes  the  final  decrees  of  courts  of 
equity.  In  another  respect  it  is  less  comprehensive,  be- 
cause it  excludes  all  interlocutory  judgments.  It  is  just 
broad  enough  to  comprise  all  final  judgments  and  all  final 
decrees,^  and  narrow  enough  not  to  comprise  any  which 
is  less  than  final.  There  can,  under  the  codes,  be  no  such 
thing  as  an  interlocutory  judgment  in  any  case.' 

1  N.  Y.  Code.  sec.  1200;  Kan.  Code,  Shreve,  3Met.  (Ky.)547.    *'Evcry  final 

sec.   395;   Nev.   Prac.    Act,    sec.    144;  adjudication  of  the  rights  of  the  parties 

Or.    Code,    sec.   240;    Cal.    Code    Civ.  in  an  action  is  a  judgmeat  ":  McClaiu's 

Proc,  sec.  .577;  Rev.  Stats.  Idaho,  ed.  Iowa  Stats.,  sec.  4056. 

1887,  sec.  4350;  Rev.  Stats.   Ohio,  ed.  ^  State  v.  McArthur,  5  Kan.  280. 

1890,  sec.  5310;  Neb.  Code  Civ.  Proc,  ^  B.-linont  v.  Ponvcrt,  3  Ro1>t.   096; 

sec.    428;    Sanborn    and    Berry  man's  Sellers  v.  Union  L.  Co.,   36  Wis.   398; 

Wi3.     Stats.,    sec.    2882;    Hughes    v.  Singer  v.  Heller,  40  Wis.  544. 


§  15  DEFINITIONS    AND    CLASSIFICATIONS.  16 

§  15.  Orders.  —  The  class  of  judgments  and  of  decrees 
formerly  called  interlocutory  is  included  in  the  definition 
given  in  the  code  of  the  word  "order."  "Every  direction 
of  the  court  or  judge  made  or  entered  in  writing,  and  not 
included  in  a  judgment,  is  an  order."  ^  The  supreme 
court  of  California,  in  one  of  its  earliest  decisions,  asked 
the  question,  "What,  then,  is  the  distinction  between  an 
order  and  a  final  judgment?"  and  answered  it  by  saying: 
"The  former  is  a  decision  made  during  the  progress  of 
the  cause,  either  prior  or  subsequent  to  final  judgment, 
settling  some  point  of  practice  or  some  question  collateral 
to  the  main  issue  presented  by  the  pleadings  and  neces- 
sary to  be  disposed  of  before  such  issue  can  be  passed 
upon  by  the  court,  or  necessary  to  be  determined  in  car- 
rying the  execution  into  effect."^  The  same  tribunal,  in 
a  subsequent  opinion,  said:  "An  order  is  the  judgment  or 
conclusion  of  the  court  upon  any  motion  or  proceeding. 
It  means  cases  where  a  court  or  judge  grants  affirmative 
relief,  and  cases  where  affirmative  relief  is  denied."*  In 
New  York  it  has  been  decided  that  the  decision  of  a  court 
overruling  a  demurrer  and  allowing  the  defendant  time  to 
answer  is  not  an  order,  but  a  judgment.  The  grounds 
upon  which  this  conclusion  was  based  were:  1.  That  an 
order  is  the  decision  of  a  motion,  while  a  judgment  is  the 
decision  of  a  trial;  2.  That  a  trial  is  an  examination  of 
an  issue  of  law  or  of  fact;  and  3.  That  as  a  decision  upon 
demurrer  necessarily  involves  an  examination  of  an  issue 
of  law,  it  is  a  decision  upon  a  trial,  and  is  therefore  a 
judgment,*  If  this  reasoning  be  correct  and  the  premises 
assumed  be  true,  it  follows  that  there  can,  under  the  code, 
be  two  judgments,  or  in  other  words,  two  final  determina- 
tions of  the  rights  of  the  parties  in  the  same  action.  The 
code  defines  a  judgment,  but  does  not  define  it  to  be  noth- 
ing more  than  "the  decision  of  a  trial."     Only  those  de- 

1  N.  Y.  Code,  sec.  767;  Nev.  Code,  ^  Gilmau  v.  Contra  Costa  Co.,  8  Cal. 

sec.    458;    Kan.    Code,    sec.    521;    Or.  57. 

Code,  sec.   513;  Cal.  Code  Civ.  Proc,  *  King  v.  Stafford,  5  How.  Pr.  30; 

sec.  1003.  Beutley  v,  Joues,  4  How.  Pr.  335. 

*  Loring  v.  Ilsey,  1  Cal.  27. 


17  FINAL   JUDGMENTS.  §  16 

cisions  of  trials  amounting  to  final  determinations  of  the 
rights  of  the  parties  answer  to  the  definition  given  of  a 
judgment.  Hence  it  is  obvious  that  an  order  overruling 
a  demurrer,  but  giving  the  defendant  an  opportunity  to 
answer,  is  not  a  judgment  within  the  meaning  of  the 
code;  and  whether  this  be  true  or  not,  there  is  no  dissent 
from  the  proposition  that  the  sustaining  or  overruling  of 
a  demurrer,  unless  followed  by  the  entry  of  a  final  judg- 
ment disposing  of  the  action  or  proceeding,  is  not  a  judg- 
ment  within  the  meaning  of  a  statute  permitting  appeals 
from  judgments.^ 

Part  H.— FINAL    JUDGMENTS. 

§  16.     Put  an  End  to  the  Suit.  — The  twenty-fifth  sec- 
tion of  the  judiciary  act  of  the  United  States  provides 
that  a  _^naZ  judgment  or  decree  in  any  suit  in  the  highest 
court  of  law  or  of  equity  of  a  state  in  which  a  decision  of 
the  suit  can  be  had  may,  in  certain  cases  therein  speci- 
fied, be    re-examined    and    reversed    or  afiirmed  in    the 
supreme  court  of  the  United  States.     The  statutes  of  the 
several  states  also  generally  provide  for  appeals  to  their 
highest  courts  from  final  judgments  and  decrees  in  the 
subordinate  courts.     Hence  it  has  frequently  been  neces- 
sary to  determine,  both  in  the  state  and  in  the  federal 
courts,  whether  a  given  judgment  or  decree   was   final 
within  the  meaning  of  the  statute  authorizing  appeals. 
A  like  necessity  existed  at  common  law.     Thus  in  3Iet- 
calfe's  Case^  "  it  was  resolved  that  no  writ  of  error  lies  till 
the  last  judgment."     Lord  Ellenborough  declared  "  error 
can  only  be  brought  on  final  judgment  ";3  and  there  are 
many  other  determinations  to  be  found  among  the  com- 
mon-law reports  to  the  same  general  effect.*     There  is  no 

»  Elwell  V.  Johnson,  74   N.  Y.  80;  H.  L.  Cas.  234;  5  I.  R   C  L    375-  ''O 

Caml>ndge  V,    N,    B.    v.    Lynch,    76  Week.  Rep.  686. 

N.  Y.  514;  Rose  v.  Gibson,  71  Ala.  35;         *  Mayor  of  Macclesfield  v.  Gee,   14 

Kirchnerj;.  Wood,  48  Mich.  199;  Gage  Mees.  &  W.  470;  Shepherd  v.  Sharp 

V.  E.ch    5b  111.  297.  1  Hurl.  &  N.  114;  Grand  Trunk  RV 

11  Coke,  68  Co.  «;.  Amey,  20  U.  C.  C.  P.  6;  Tolsou 

^Samuel   t>.   Judin    6  East    .3.33;    1  v.  Kaye,  7  Scott  N.  R.  222;  6  Madd. 

I^.  R.  43;  Scott  v.  Bennett,  L.  R.  5  &  G.  536. 
Jddg.  L— 2 


§  16  FINAL   JUDGMENTS.  18 

doubt  that,  in  order  to  come  within  these  statutes  or  to 
satisfy  the  tests  applied  by  the  common  law,  the  judgment 
or  decree  need  not  jBually  determine  the  rights  of  the 
parties  litigant;  it  is  sufficient  if  it  ends  the  particular 
suit  in  which  it  is  entered.' 

Every  definite  sentence  or  decision  by  which  the  merits 
of  a  cause  are  determined,  although  it  is  not  technically  a 
judgment,  or  although  the  proceedings  are  not  capable  of 
being  technically  enrolled  so  as  to  constitute  what  is  techni- 
cally called  a  record,  is  a  judgment  within  the  meaning  of 
the  law.  According  to  the  common-law  rule,  by  a  final 
judgment  is  to  be  understood,  not  a  final  determination 
of  the  rights  of  the  parties,  but  merely  of  the  particular 
suit.^  Therefore  a  judgment  of  nonsuit,^  or  of  dismissal 
without  prejudice,  or  in  favor  of  plaintiff  or  defendant 
upon  a  plea  in  abatement,*  or  in  an  action  of  ejectment 
where  the  law  denies  to  a  judgment  in  that  action  the 
effect  of  res  judicata,^  because  each  terminates  the  action 
in  which  it  is  entered,  is  final,  though  the  parties  may  in 
a  subsequent  action  be  permitted  to  relitigate  issues  pre- 
sented in  the  former  action  which  has  gone  to  judgment. 
If  a  judgment,  though  upon  the  merits  or  determining 
some  substantial  right,  leaves  necessary  further  judicial 
action  before  the  rights  of  the  parties  are  settled,  it  is  not 
final.®  A  judgment  is  final,  notwithstanding  the  addition 
to  the  record  of  the  words  "unless  the  supreme  court 
shall  reverse  the  rulings  of  this  court  and  set  aside  said 
judgment  of  nonsuit."'^  If,  however,  a  judgment  is 
imperfect  and  uncertain,  but  is  to  be  made  perfect  and 

'  Weston   V.  City  of   Charleston,  2  *  McCartee  v.   Chambers,  6  Wend. 

Pet.   449;   Ludlow's   Heirs   v.   Kidd's  649;  22  Am.  Dec.  556;  New  York  D. 

Ex'rs,  3  Hamm.  541;  Helm  v.  Short,  D.  Co.  v.  Treadwell,    19  Wend.   527; 

7  Bush,  623.  Jewett  v.  Davis,  6  N.  H.  518. 

^  Belt  V.  Davis,  1  Cal.  138;  Klink  v.  *  Weston  v.    City  Council,   2   Pet. 

Steamer  Cusseta,  30  Ga.  504.  449. 

^  Box   V.    Bennett,    H.    Black.   432;  *  Benjamin    v.    Dubois,    118   U.    S. 

Hitchins   v.   HoUingsworth,   7  Moore  46;    Coons   v.    Harllee,    17   Fla.    484; 

P.  C.  C.   228;  Hartford  F.  I.  Co.   v.  Bostwick  v.    Brinkerhoff,    106   U.   S. 

Green,  52  Miss.  332;  West  v.  Bagly,  3. 

12  Tex.  34;  62  Am.  Dec.  512;  Corning  ''  Wood  v.  Coman,  56  Ala.  283. 
T.  Co.  V.  Pell,  4  Col.  184. 


19  FINAL   JUDGMENTS.  §  16 

certain  by  the  action  of  some  non-judicial  person,  as  where 
it  is  to  be  released  on  payment  of  such  sum  as  M.  shall 
say  is  due/  or  is  confessed  for  a  sum  "to  be  liquidated  by 
attorneys,"  it  is  final.^ 

A  judgment  "that  the  defendant  go  hence,  and  that  he 
recover  his  costs,  etc.,"  though  not  very  formal,  is  a  good 
final  judgment,  because  no  further  action  can  be  taken 
while  it  remains  in  force/''  But  a  judgment  for  costs 
alone,  though  entered  for  defendant,  after  the  jury  have 
found  a  verdict  in  his  favor,  it  seems  is  not  final,  and 
cannot  therefore  be  made  the  subject  of  revision  after 
appeal.  The  reasons  urged  against  regarding  such  a 
judgment  as  final  are,  that  it  does  not  dismiss  the  defend- 
ant without  day,  nor  state  that  plaintiff  shall  take  nothing 
by  his  suit,  nor  in  any  way  nor  by  any  terms  profess  to 
dispose  of  the  subject-matter  of  the  litigation,* 

It  is  fatal  to  the  claim  that  a  particular  order  or  direc- 
tion of  the  court  is  a  judgment,  that  it  appears  to  be  but 
preliminary  to  the  final,  formal  action  of  the  court,  as 
where  it  is  a  direction  that  judgment  be  entered,  though 
it  is  sufiiciently  specific  to  enable  the  attorneys  or  the  clerk 
to  draught  a  judgment  in  conformity  therewith.^  An 
exception  to  this  rule  prevails  in  Massachusetts.  By  the 
practice  in  that  state,  "  an  entry  upon  the  docket  in  a  suit 
in  equity  of  '  bill  dismissed'  is  of  itself  a  final  decree;  and 
a  more  formal  order,  though  convenient  and  proper  for 
the  regular  completion  of  the  record,  is  not  essential,  and 
if  afterwards  drawn  up  is  a  mere  extension  of  the  final 
decree  already  entered,  and  has  relation  to  the  entry  of 
that  decree";  and  the  mere  entry  upon  the  docket  of  "bill 
dismissed  "  may  at  once  be  appealed  from  as  a  final  decree.^ 

'  Turner  v.  Plowden,  5  Gill  &  J.  52;  v.  White,  25  Tex.  319;  Green  v.  Banks, 

23  Am.  Dec.  596.  24  Tex.  522;  Scott  v.  Burton,  6  Tex. 

^  Commonwealth     v.     Baldwin,     1  332;   55   Am.    Dec.    782;   Eastham  v. 

Watts,  54;  26  Am.  Dec.  33.  Sallis,  60  Tex.  576. 

^  Rogers    v.    Gosnell,    51    Mo.    468;  ^  Macnevin    v.    Macnevin,    63   Cal. 

Smith   V.  Mayor  of   Boston,  1    Gray,  186;  Eastham  v.   Sallis,  60  Tex.  576; 

72.  Gilpatrick   v.    Glidden,    82   Me.    201; 

*  Warren   v.   Shuman,   5  Tex.   450;  Blount  v.  Gallaher,  22  Fla.  92. 

Higbee  v.  Bowers,  9  Mo.  354;  Neyland  ^  g^gn  ^^  D wight,  121  Mass.  348. 


§§  17-19  FINAL    JUDGMENTS.  .  20 

§  17.  Dismissal.  —  The  dismissal  of  a  suit  by  the  plain- 
tiff is  a  judgment  within  the  meaning  of  the  code.  Where 
in  a  suit  a  temporary  injunction  has  been  issued,  and  the 
plaintiff,  after  giving  bonds  to  secure  the  payment  of  all 
damages  which  may  be  occasioned  by  reason  of  the  in- 
junction being  improperly  issued,  dismisses  his  suit,  or 
permits  it  to  be  dismissed  for  want  of  prosecution,  such 
dismissal  is  a  final  judgment,  and  an  adjudication  that  the 
injunction  ought  not  to  have  issued,  on  which  an  action 
may  be  maintained  on  the  bond  for  all  damages  resulting 
from  the  injunction.  Although  in  case  of  a  judgment  by 
dismissal  the  issues  are  neither  examined  nor  passed  upon 
by  the  court,  yet  by  the  failure  of  the  plaintiff  to  prose- 
cute his  action,  they  are  virtually  confessed.  A  dismissal 
under  such  circumstances,  while  it  does  not  estop  the 
plaintiff  from  maintaining  a  new  suit  on  the  same  cause 
of  action,  does  dispose  of  the  rights  of  the  parties  in  the 
action  in  the  same  manner  as  if  there  had  been  an  adju- 
dication on  the  merits.^ 

§  18.  Judgment  Vacating  Another  Judgment.  —  When 
in  an  action  to  set  aside  a  judgment  the  court  grants  the 
prayer  of  the  complaint  and  awards  a  new  trial,  the  order 
setting  aside  the  judgment  is  a  final  judgment,  and,  as 
such,  may  be  appealed  from.  The  whole  scope  and  object 
of  the  suit  being  to  vacate  the  former  judgment,  and  to 
procure  a  new  trial,  and  the  issues  all  being  made  up  for 
that  purpose,  their  determination  necessarily  puts  an  end 
to  the  suit.^ 

§  19.  Judgment  of  Condemnation.  —  In  a  proceeding 
by  a  railroad  company  to  condemn  lands,  or  a  right  of 
way  across  lands,  where  the  parties  in  interest  are  sum- 

1  Cowling  V.   Polack,    18  Cal.    625;  City,    51    Mo.    454;    Sloppenbach    v. 

Loomis  V.  Brown,  16  Barb.  325;  Shear-  Zohrlant,  21  Wis.  385. 
man  r.  N.  Y.  Central  Mills,  11  How.         ■'  Belt  v.  Davis,  1  Cal.   134;  McCall 

Pr.  269;  Coates  v.  Coates,  1  Duer,  664;  v.  Hitchcock,    7    Bush,  615;   State  v. 

Leese  v.  Sherwood,  21  Cal.   163;  Gill  Allen,  92  Mo.  20.     See,  however,  Dor- 

V.   Jones,    57    Miss.    367;    Rodgers   v.  sey  v.  Thompson,  37  Md.  25. 
Russell,  11  Neb.  361;  Bowie  v.  Kansas 


21  •  FINAL   JUDGMENTS.  §  20 

moned  to  appear  and  contest  with  the  petitioners,  and 
where  commissioners  are  appointed  to  assess  the  value  of 
the  property  sought  to  be  condemned,  and  a  report  is 
made  by  them  and  confirmed  by  the  court,  and  the  court 
adjudges  that  the  petitioners  have  brought  themselves 
within  the  provisions  of  the  act  providing  for  the  con- 
demnation, the  action  of  the  court  is  a  final  judgment 
within  the  meaning  of  the  section  of  the  Practice  Act 
allowing  an  appeal  from  a  final  judgment  entered  in  an 
action  or  special  proceeding/ 

§  20.  Must  not  Leave  Issues  to  be  Settled.  —  Some- 
times several  issues  of  law  and  of  fact  are  presented  for 
the  consideration  of  the  court  in  the  same  suit  or  proceed- 
ing. In  such  case  there  can  be  no  judgment  from  which 
an  appeal  can  be  taken  while  it  remains  necessary  for  the 
court  to  determine  some  issue  of  law  or  of  fact.^  It  is  not 
true  that  a  final  judgment  always  settles  all  the  issues 
presented  by  the  pleadings.  A  finding  upon  some  of 
the  issues  may  remove  all  necessity  for  consideringothers, 
and  the  court,  judging  them  to  be,  in  view  of  the  findings 
made,  immaterial,  may  pronounce  judgment,  leaving 
them  undetermined.  Such  judgment  is  nevertheless 
final,  because  there  remains  no  issue  which  will  be  the 
subject  of  any  further  consideration  or  action.  At  the 
common  law,  a  demurrer  was  treated  as  an  admission  of 
the  allegations  of  the  complaint,  and  therefore  removed 
from  the  case  all  issues  of  fact,  and  left  nothing  for  judi- 
cial action  save  an  issue  of  law.  The  determination  of 
that  disposed  of  all  the  issues  in  the  case,  and  the  judg- 
ment entered  therein  was  final.  Under  the  practice  gen- 
erally prevailing  at  the  present  time,  a  demurrer  is  not 
regarded  as  a  confession,  except  for  the  purpose  of  testing 
the  sufficiency  of  the  pleading  to  which  it  is  interposed. 
If  it  is  sustained,  the  pleading  is  allowed  to  be  amended; 

"  S.  P.  &  N.  R.  R.  Co.  V.  Harlau,  24  •"  Texas  Pac.  R'y  v.  Ft.  W.  R'y,  75 
Cal.  337;  Huuter's  Private  Road,  46  Tex.  83;  Low  i;.  Crown  Point  M.  Co.,  2 
Pa.  St.  250.  Nev.  75;  King  v.  Barnes,  107  N.  Y.  645. 


§  21  FINAL   JUDGMENTS.  22 

if  it  is  overruled,  the  right  to  answer  is  not  denied.  In 
either  event,  issues  of  fact  may  arise,  and  it  is  not  until 
it  is  known  that  the  plaintiff  will  not  amend  his  com- 
plaint, or  that  the  defendant  will  not  by  his  answer  form 
an  issue  of  fact,  that  final  judgment  can  be  entered  on 
the  demurrer. 

Though  no  issue  is  presented  by  the  pleadings,  there 
may  be  questions  which  the  court  must  determine  as 
though  there  were  an  issue  thereon.  If  so,  the  judgment 
cannot  be  final  while  a  question  remains  to  be  judicially 
answered.  Thus  though  the  defendant  has  made  default, 
and  thereby  confessed  the  allegations  of  the  complaint, 
the  statute  or  the  well-established  practice  of  the  court 
may  require  evidence  to  be  heard  before  the  court  can 
assess  the  damages,  or  determine  the  nature  and  extent  of 
some  other  kind  of  relief  sought  by  plaintiff;  and  it  is  not 
until  the  damages  have  been  assessed,  the  amount  of  the 
recovery  fixed,  or  the  extent  of  the  other  relief  judicially 
ascertained  and  pronounced,  that  there  can  be  a  final 
judgment.  Whatever  is  judicially  done  before  that  is  but 
one  of  several  steps  toward  the  final  judgment,  from 
which  alone  an  appeal  may  be  taken.'  But,  on  the  other 
hand,  if  the  amount  of  a  recovery  can  be  made  certain 
"  by  mere  calculation,  the  judgment  is  final." '^ 

An  order  dismissing  a  cross-bill  does  not  authorize  the 
entry  of  a  final  judgment  thereon,  if  there  is  an  answer  to 
the  original  complaint  or  bill  by  which  issues  are  formed,^ 
and  which  must  be  settled  before  the  case  can  be  disposed 
of.  There  cannot  be  a  final  judgment  on  the  cross-bill, 
and  after  that  another  final  judgment  disposing  of  the 
other  issues.' 

§  21.  Not  Always  a  Final  Adjudication. — A  judgment 
may  be  final  so  as  to  authorize  an  appeal  from  the  court 

1  Daniel   v.    Cooper,  2  Houst.  506;  Mo.   132;  Hunter  v.  Hunter,  100  111. 

Maury  v.  Roberts,  27  Miss.  225;  Clem-  519. 

ents  V.  Berry,  11  How.   398;  Phillips  ^  Sellers   v.    Burk,  47  Pa.  St.    344; 

V.  Hellin^s,  5  Watts  &  S.  44;  Coons  v.  Adickes  v.  Allison,  21  S.  C.  245. 

Harllee.  17  Fla.  484;  Tuggle  V.  Gilbert,  '^  Low   v.    Crown   Point   M.    Co.,  2 

1  Duvall,  340;  Deickart  v.  Rutgers,  45  Nev.  75;  Fleece  v.  Russell,  13  111.  31. 


23  FINAL   JUDGMENTS.  §  21  a 

in  which  it  was  rendered,  without  being  final  as  to  the 
subject-matter  in  litigation.  An  appeal  ma}^  be  taken,  in 
which  case  the  judgment  of  the  inferior  tribunal  is  not 
final  as  to  the  subject-matter,  because  it  may  be  changed 
b}'  the  appellate  court.  Thus  a  covenant  in  a  deed  that 
if  the  title  to  certain  lands  were  not  confirmed  to  the 
covenantor  by  the  courts  of  the  United  States  before 
which  it  was  pending,  upon  the  final  adjudication  of  the 
same,  the  covenantor  would  pay  a  sum  of  money,  does 
not  become  a  cause  of  action,  when  the  district  court  re- 
fuses to  confirm  the  title  and  declares  it  invalid.  Until 
the  time  for  appeal  has  elapsed,  or  until  the  judgment  of 
the  highest  court  in  which  the  suit  could  be  determined 
has  pronounced  against  the  validity  of  the  title,  there  has 
been  no  such  final  adjudication  as  was  intended  by  the 
parties  to  the  covenant.^ 

§  21  a.  In  Criminal  Prosecutions  the  same  policy  with 
respect  to  appeals  prevails  as  in  other  cases.  The  judg- 
ments which  may  be  reviewed  by  appeal  or  otherwise  must 
be  final;  and,  generally,  no  judgment  will  be  regarded  as 
final  unless  it  condemns  the  prisoner  to  be  punished,  and 
sets  forth  particularly  the  amount,  duration,  and  place  of 
punishment.^  The  defendant  cannot  appeal  from  an  or- 
der sustaining  a  demurrer  to  his  plea  of  autrefois  acquit."^ 
Evidently  an  order  overruling  a  demurrer  to  an  indict- 
ment cannot  be  appealed  from  as  a  final  judgment,  for  it 
leaves  the  issues  of  fact  yet  to  be  tried,  and  judgment 
thereon  yet  to  be  pronounced.*  It  has  also  been  deter- 
mined that  no  appeal  can  be  taken  where  the  court  sus- 
tains a  demurrer  to  an  indictment,  but  enters  no  formal 
final  judgment  in  favor  of  the  defendant.^  In  California 
a  different  rule  prevails,  and  the  reasons  for  its  adoption 
were  very  clearly  and  forcibly  stated  by  Mr.  Justice  Crock- 
ett,, in  People  V.  Ah  Own,  39  Cal.   606,  in  the  following 

1  Hills  V.  Sherwood,  33  Cal.  474.  '  State  v.  Hornetnan,   16  Kan.  452. 

»  Anschincks  v.  State,  43  Tex.  587;  *  People  v.  Hall,  45  Cal.  253 

Mayfield  v.   State,  40  Tex.  289;  Ful-  '  State  v.  Gregory,  38  Mor501;  State 

cher  V.  State,  38  Tex.  505,  v.  MuULx,  53  Mo.  355. 


§  21  b  FINAL   JUDGMENTS.  24 

language:  "This  is  an  appeal  from  an  order  sustaining 
a  demurrer  to  an  indictment  for  kidnaping.     The  order 
sustaining  the  demurrer   is   in  the   usual  form;  but   no 
other  or  further  order  or  judgment  was  entered,  and  the 
appeal  is  taken  from   this   order,  treating  it  as  a  final 
judgment  or  disposition  of  the  case.     The  objection   is 
urged  that  no  appeal  will  lie  from  an  order  sustaining  a 
demurrer  to  an  indictment;  that  to  entitle  the  state  to  an 
appeal,  there  mjist  be  a  formal  and  final  judgment;  and 
it    is   claimed  that  the   order    sustaining  the   demurrer, 
standing  alone,  cannot  be  deemed  a  final  judgment  from 
which  an  appeal  will  lie.     But  we  think  the  point  is  not 
well   taken.     A  defective    indictment   is    not    subject   to 
amendment,  and  when  decided  on  demurrer  to  be  insufli- 
cient,  the  cause  is  finally  ended.     Section  144  of  the  code 
defines  a  judgment  to  be  'the  final  determination  of  the 
rights  of  the  parties  to  the  action  or  proceeding';  and  it 
is  evident  that  the  final  order  which  decides  the  matters 
at  issue,  adjudicates  the  rights  of  the  parties,  and  ends  the 
litigation,  must  be  deemed  a  final  judgment  for  the  pur- 
poses of  an  appeal.     In  civil  actions  an  order  sustaining 
a  demurrer  to  the  complaint  is  not  an  appealable  order, 
for  the  reason  that  the  complaint  is  amendable,  and  the 
sustaining  a  demurrer  to  it  does  not  end  the  litigation. 
It  is  not  a  final  determination  of  the  rights  of  the  parties. 
But  in  a  criminal  prosecution  it  is  otherwise,  and  when  a 
demurrer  is  sustained,  the  action  is  finally  ended  in  that 
court.     Nothing  more  remains  to  be  done.     It  is  true,  in 
proper  cases,  if  the  defendant  is  in  custody,  the  court  may 
detain  him  to  answer  another  indictment  to  be  found  by 
another  grand  jury.     But  the  first  indictment  is,  never- 
theless, finally  disposed  of  by  the  demurrer,  and  the  order 
sustaining  which  may  for  that  reason  be  properly  deemed 
to  be  a  final  judgment." 

§  21  b.     A  Judgment  Dismissing  an.  Attachment  under 
the  code  of  Georgia  has  been  held  by  the  supreme  court 


25  FINAL   JUDGMENTS.  §  21  C 

of  that  state  to  be  so  far  final  as  to  be  subject  to  review  on 
writ  of  error  "  for  the  reason  that  the  whole  attachment 
element  was  disposed  of  by  dismissing  the  attachment. 
The  decision  was  final  as  to  it,  and  any  judgment  which 
the  plaintiflf  might  recover  on  his  declaration  thereafter 
would  have  no  aid  from  the  levy  of  the  attachment.  It 
would  take  lien  only  from  the  date  of  the  judgment,  and 
the  security  of  the  replevy  bond  would  be  lost.  To  main- 
tain his  attachment,  it  was  the  right  of  the  plaintiff  to 
have  the  judgment  dismissing  it  reviewed  by  a  separate 
writ  of  error."*  These  reasons  are  very  persuasive,  if 
addressed  to  the  question  whether  the  statute  ought  to  be 
amended  so  as  to  sanction  appeals  from  orders  dismissing, 
dissolving,  or  otherwise  annulling  or  impairing  writs  of 
attachment  or  levies  made  thereunder.  The  fact  that  a 
ruling  may  be  very  disastrous  to  one  of  the  parties  does 
not  necessarily  entitle  it  to  take  rank  as  a  final  judgment. 
The  refusal  to  postpone  the  time  of  trial,  the  exclusion  or 
admission  of  particular  evidence,  the  giving  or  refusing 
to  give  an  instruction,  and  many  other  judicial  acts,  may 
be  decisive  of  a  case;  but  this  does  not  convert  them  into 
judgments,  and  entitle  the  injured  party  to  at  once  test 
their  correctness  by  appeal.  So,  we  apprehend,  the  dis- 
missal, dissolving,  or  quashing  of  an  attachment  or  of 
the  levy  thereof  is  not  reviewable  as  a  final  judgment.^ 
But  if  garnishment  proceedings  are  instituted  against  an 
alleged  debtor,  and  jurisdiction  is  acquired  over  him,  and 
after  he  has  answered  a  judgment  is  entered  discharging 
him,  this,  so  far  as  he  is  concerned,  is  a  final  judgment 
exhausting  the  jurisdiction  of  the  court  over  him,  and  a 
judgment  subsequently  entered  against  him  is  void.' 

§  21  c.     An  Order  Dismissing  a  Petition  for  Interven- 
tion is,  in  Texas,  not  subject  to  review  as  a  final  judgment. 

1  Bruce  v.    Conyers,    54    Ga.    680;     v.   Taylor,    18   Kan,   558;   Wearen   v. 
Sutherlin  v.  Underwriters'  Agency,  53     Smith,  80  Ky.  216. 

Ga.  442.  *  Jackson  v.  St  L.  &  S.  F.  R'y  Co., 

2  Cutter   V.  Gumhertz,  8  Ark.  449;     89  Mo.  104. 
Woodruff  i;.  Rose,  43  Ala.  382;  Butcher 


§  22  FINAL   JUDGMENTS.  26 

The  petitioner  or  intervener  must  wait  until  the  issues 
between  the  plaintiff  and  defendant  are  determined  and 
their  rights  fixed  by  a  final  judgment,  before  he  can  ap- 
peal.^ The  rule  is  otherwise  in  California^  and  Louisiana,' 
whether  the  order  be  one  denying  leave  to  file  a  complaint 
of  intervention,  or  sustaining  a  demurrer  thereto  when 
filed,  and  entering  judgment  thereupon  against  the  inter- 
vener. 

§  22.  Final  Adjudications  in  Equitable  Proceedings.  — 
Considerable  difficulty  has  been  experienced  in  determin- 
ing what  is  a  final  judgment,  under  the  code,  in  equitable 
proceedings,  and  what  is  a  final  decree,  where  the  pro- 
ceedings are  conducted  according  to  the  practice  in  chan- 
cery. Perhaps  the  decisions  are  not  wholly  reconcilable; 
but  their  want  of  harmony,  if  it  exists  at  all,  is  rather  in 
applying  than  in  formulating  the  general  rules  by  which 
the  answer  to  this  question  must  be  found.  We  shall  first 
call  attention  to  those  decrees  which  have  been  declared 
final,  and  next  to  those  which  have  been  adjudged  inter- 
locutory, hoping  that  an  examination  of  each  class  will 
assist  in  identifying  the  other. 

"  A  decree  never  can  be  said  to  be  final  where  it  is  im- 
possible for  the  party  in  whose  favor  the  decision  is  made 
ever  to  obtain  any  benefit  therefrom  without  again  setting 
the  cause  down  for  hearing  before  the  court,  upon  the 
equity  reserved,  upon  the  coming  in  and  confirmation  of 
the  report  of  the  master,  to  whom  it  is  referred  to  ascer- 
tain certain  facts  which  are  absolutely  necessary  to  be 
ascertained  before  the  case  is  finally  disposed  of  by  the 
court,  or  which  the  chancellor  thinks  proper  to  have  as- 
certained before  he  grants  any  relief  whatever  to  the  com- 
plainant. But  if  the  decree  not  only  settles  the  rights  of 
the  parties,  but  gives  all  the  consequential  directions 
which  will  be  necessary  to  a  final  disposition  of  the  cause, 

'  Stewart  v.  State,  42  Tex.  242.  *  State  v.  Parish  Judge,  27  La.  Ann. 

« Stich   V.    Dickinson,  38  Cai.  608;     184. 
Coburn  v.  Smart,  53  CaL  742. 


27  FINAL   JUDGMENTS.  §  23 

upon  the  mere  confirmation  of  tlie  report  of  the  master  by 
a  common  order  in  the  register's  office,  it  is  a  final  decree 
and  may  be  enrolled  at  the  expiration  of  thirty  days, 
although  the  amount  to  which  the  complainant  may  be 
entitled  under  such  decree  is  still  to  be  ascertained  upon 
a  reference  to  a  master  for  that  purpose."  ^  Owing  to  the 
number  of  orders  or  decrees  necessarily  entered  in  a  suit 
in  equity  to  furnish  all  the  relief  to  which  the  complain- 
ant may  be  entitled,  the  courts  have  been  frequently 
obliged  to  determine  which  is  the  final  decree.  So  far  as 
any  general  distinguishing  test  can  be  gathered  from  the 
numerous  decisions,  it  is  this:  That  if  after  a  decree  has 
been  entered  no  further  questions  can  come  before  the 
court  except  such  as  are  necessary  to  be  determined  in 
carrying  the  decree  into  effect,  the  decree  is  final;  other- 
wise it  is  interlocutory.^  But  an  order  or  decree  made  for 
the  purpose  of  carrying  a  judgment  or  decree  already 
entered  into  effect  is  not  a  final  judgment  or  decree,  and 
cannot  be  appealed  from  as  such.' 

"The  rule  is  well  settled  and  of  long  standing,  that  a 
judgment  or  decree,  to  be  final  within  the  meaning  of  that 
term  as  used  in  the  acts  of  Congress  giving  this  court 
jurisdiction  on  appeals  and  writs  of  error,  must  terminate 
the  litigation  between  the  parties  on  the  merits  of  the 
case,  so  that  if  there  should  be  an  affirmance  here,  the 
court  below  would  have  nothing  to  do  but  to  execute 
the  judgment  or  decree  it  had  already  rendered."* 

§  23.    May  Contain  Directions  to  be  Executed  in  Future. 

—  A  stockholder  having  commenced  an  action  against  a 

'  Johnson  v.  Everett,  9  Paic;e,  638.  Cook's  Heirs  v.  Bay,  4  How.  (Miss.) 

«  Whiting  V.  Bank  of  U.  S.,  13  Pet.  485. 

6;  Bronson  v.  R.  R.  Co.,  2  Black,  524;  ^  Callan     v.    May,     2    Black,     541; 

Ogilvie   V.  Knox    Ins.    Co.,    2   Black,  Smith  v.  Trabue's  Heirs,  9  Pet.  4. 

539;  Humiston  v.  Stainthorp,  2  Wall.  *  Bostwick  v.  Brinkerhoff,  106  U.  S. 

106;  Miller  v.  Cook,  77  Va.  806;  Bond  3;  Grant  v.  Phoenix  Ins.  Co.,  106  U.  S. 

V.  Marx,  53  Ala.  177;  Cocke  v.  Gilpin,  429:  St.  Louis,  I.  M.,  &  S.  R'y  Co.  v. 

1  Rob.   (Va.)  20;   Teaff  v.   Hewitt,   1  Southern  Express  Co.,  108  U.    S.  24; 

Ohio  St.  511;  59  Am.  Dec.  634;  Ware  Dainese    v.    Kendall,    119   U.    S.    53; 

V.  Pvichardson,  3  Md.  505;  56  Am.  Dec.  Keystone  M.  &  I.  Co.  v.  Martin,   132 

762;  Beebe  v.  Russell,   19  How.  283;  U.  S.  91. 


§   24  FINAL    JUDGMENTS.  28 

corporation  and  its  officers  for  an  accounting  and  settle- 
ment of  its  affairs,  a  decree  was,  after  a  full  hearing  on 
the  merits,  entered  in  accordance  with  the  prayer  of  the 
complaint.  By  this  decree  a  receiver  was  appointed  to 
take  charge  of  the  corporate  assets  until  the  further  order 
of  the  court,  to  collect  moneys  due  or  to  become  due,  sell 
stock,  and  pay  the  proceeds  in  accordance  with  directions 
given  in  the  decree.  The  supreme  court  declared  that 
this  decree  was  a  final  judgment,  and  subject  to  appeal.^ 
A  decree  entered  in  an  action  brought  for  an  accounting 
and  for  a  dissolution  of  a  copartnership,  granting  the 
relief  prayed  for,  ordering  a  sale  of  all  the  partnership 
assets,  and  specifying  the  manner  in  which  the  proceeds 
of  such  sale  shall  be  distributed,  is  a  final  decree.'' 

§  24.  May  Require  Future  Orders  or  Proceedings. — 
These  decisions  are  fully  sustained  by  several  of  the  de- 
cisions of  the  courts  of  the  state  of  New  York.  Although 
further  proceedings  before  the  master  are  necessary  to 
carry  the  decree  into  effect,  yet  if  all  the  consequential 
directions  depending  on  the  result  of  the  proceedings 
are  given  in  the  decree,  it  is  final.  A  decree  is  none  the 
less  final  because  some  future  orders  of  the  court  may  be- 
come necessary  to  carry  it  into  effect;'  nor  because  some 
independent  branch  of  the  case  is  reserved  for  further 
consideration,'*  or  the  disposition  of  the  costs  is  not  deter- 
mined;^ nor  because,  when  the  merits  of  the  controversy 
are  adjudicated  upon,  and  the  equities  of  the  parties  defi- 
nitely settled,  an  account  is  directed  to  be  taken  to  ascer- 
tain what  sum  is  due  from  the  one  to  the  other,  as  the 
result  of  the  decision  already  made  by  the  court.®     But  in 

1  Neall  V.  Hill,  16  Cal.   145;  76  Am.         *  Cannon  v.  Hemphill,  7  Tex.  184. 
Dec.  508.  ^  McFarland  v.  Hall,  17  Tex.  691, 

2  Clark  V.  Dunnam,  46  Cal.  204;  «  Bank  of  Mobile  ?;.  Hall,  6  Ala.  141; 
Evans  v.  Dunn,  26  Ohio  St.  439.  41  Am.  Dec.  41;  Thomson  v.  Dean,   7 

3  Mills  V.  Hoag,  7  Paige,  IS;  31  Am.  Wall.  342;  Garner  v.  Prewitt,  32  Ala, 
Dec.  271;  Johnson  v.  Everett,  9  Paige,  13;  Green  v.  Winter,  1  Johns.  Ch.  27; 
636;  Quackenhush  v.  Leonard,  10  7  Am.  Dec.  475;  Bradford  v.  Bradley's 
Paige,  131;  Dickmson  v.  Codwise,  11  Adm'r,  37  Ala,  453;  Jones  v.  Wilson, 
Paige,  189;  Stovall  v.  Banks,  10  Wall.  54  Ala,  50. 

583. 


29  FINAL   JUDGMENTS.  •  §  25 

all  cases  where  further  proceedings  are  to  he  taken,  or 
further  orders  of  the  court  are  necessary,  the  judgment 
cannot  be  treated  as  final,  even  for  the  purposes  of  appeal, 
unless  it  determines  the  issues  involved  in  the  action.^  A 
judgment  against  an  administrator,  for  a  specific  sum  and 
costs,  in  the  usual  form,  except  that  there  was  a  clause 
added,  to  the  effect  that  the  defendant  should  have,  during 
the  term  of  the  court,  to  make  additional  showing,  if  he 
could,  that  he  had  previously  paid  the  moneys  or  any 
part  thereof  for  which  judgment  was  rendered  against 
him,  was  held  to  be  final,  on  the  ground  that  this  clause 
did  not  confer  any  new  right  nor  detract  from  the  effect 
of  the  judgment;  for,  as  the  court  said,  a  judgment  may 
always  be  opened  or  set  aside  during  the  term  at  which  it 
was  rendered.^  A  judgment  against  an  administrator  in 
the  usual  form,  "to  be  released  on  the  payment  of  such 
sum  as  Enoch  J.  Millard  shall  say  is' due,  and  costs,"  was 
also  adjudged  to  be  final,  because  "  to  make  it  absolute  as 
far  as  regarded  the  amount  due  on  the  account,  no  fur- 
ther act  of  the  court  was  nec^essary."  ^ 

§  25.  Requiring  Conveyance  of  Property.  —  In  the  case 
of  Travis  v.  Waters,  12  Johns.  500,  a  decree  was  said  to  be 
final  when  all  the  facts  and  circumstances  material  to  a 
complete  explanation  of  the  matters  in  litigation  were 
brought  before  the  court,  and  so  fully  and  clearly  ascer- 
tained on  both  sides  that  the  court  has  been  enabled  to 
collect  the  respective  merits  of  the  parties  litigant,  and 
upon  full  consideration  has  determined  between  them 
according  to  equity  and  good  conscience.  This  case  was 
for  a  specific  performance  of  a  contract  to  convey  certain 
lands.  The  chancellor  having  made  an  order  that  the 
defendant,  under  direction  of  one  of  the  masters  of  the 
court,  on  payment  or  tender  to  him  of  a  certain  sum  of 
money,  execute  and  deliver  to  the  plaintiff  a  good  and 

1  Perkins  v.  Sierra  N.  S.  M.  Co.,  10        ^  Turner  v.  Plow  den,  5  Gill  &  J.  62; 
Nev.  405.  23  Am.  Dec.  596." 

»  Harmon  v.  Bynum,  40  Tex.  324. 


§  26  FINAL   JUDGMENTS.  30 

sufficient  conveyance  of  the  real  estate  in  controversy, 
this  order,  though  silent  as  to  costs,  was  considered  as 
within  the  above  definition  of  a  final  decree,  and  the 
plaintiff  was  not  permitted  to  set  the  case  down  for  fur- 
ther hearing,  so  as  to  have  his  bill  of  costs  put  in  the 
decree.^ 

§  26.     Final,  if  Requires  Delivery  of  Property.  — Where 
the  assignee  of  a  bankrupt  filed  his  bill  in  equity  to  have 
the  deeds  of  certain  lands  and  slaves  made  by  the  bank- 
rupt to  the  defendants  set  aside,  and  to  have  the  lands 
and  slaves  delivered  to  the  assignee,  and  that  an  account 
of  the  profits  of  the  lands  and  slaves  be  taken,  and  that 
such  profits,  when  ascertained,  should  be  paid  over  to  the 
assignee,  the  court  decreed  that  the  lands  and  slaves  be 
delivered  to  the  assignee  and  by  him  sold,  and  that  the 
account  of  profits  be  taken.     From  this  decree  an  appeal 
was  taken  to  the  supreme  court  of  the  United   States, 
where  a  motion  was  made  to  dismiss  the  appeal  because 
the  decree  was   interlocutory.     The   motion  was   denied. 
The  court  said  that  when  a  decree  determined  the  right 
to  property,  and  directed  it  to  be  given  to  the  complain- 
ant, or  to  be  sold  for  his  benefit,  and  he  was  entitled  to 
have  the  decree  carried  into  immediate  effect,  it  was  final 
within  the  meaning  of  the  statute  authorizing  appeals; 
and  that  if  no  appeal  were  allowed  from  such  a  decree, 
the  property  in  controversy  could  be  sold,  or  otherwise 
disposed  of,  and  thereby  placed  so  completely  beyond  the 
reach  of  the  defendants  that  an  appeal  at  a  subsequent 
stage  of  the  proceedings  could  do  them  no  good.^    It  seems 
certain,  however,  that  if  the  decree  under  consideration 
in  the  above  case  had  simply  determined  the  right  to  the 
property  in  dispute,  without  giving  directions  for  its  sale, 
or  delivery  to  the  complainants,  no  appeal  would  have 

^  A  decree  is  final  which  determines  '  Forgay   v.   Conrad,    6   How.    201 ; 

the  rights  of  property,  and  directs  a  Davie  v.  Davie,  52  Ark.  224;  20  Am. 

conveyance  to  be  made  at  a,  future  da,y.  St.  Rep.  170. 
Lewis  V.  Outton's  Adm 'r,  3  B.  Mon.  453. 


31  FINAL   JUDGMENTS.  §§  27,  28 

been  recognized  until  all  the  issues  had  been  determined, 
and  such  a  decree  entered  as  would  have  completely  dis- 
posed of  the  suit.^  A  decree  final  in  other  respects  is  not 
interlocutory  because  it  directs  a  taxation  of  costs;  ^  nor 
because,  as  in  the  case  of  a  decree  for  the  sale  of  mort- 
gaged premises,  subsequent  proceedings  under  direction 
of  the  court  are  necessary  to  execute  the  decree.' 

§  27.  Must  be  Final  as  to  All  Defendants.  —  The  order 
of  the  court  in  an  action  for  the  partition  of  real  estate, 
which  determines  the  several  interests  of  the  parties  to  the 
action,  and  appoints  a  referee  to  make  a  partition  between 
them,  and  report  the  same  to  the  court,  is  not  a  final  judg- 
ment, even  against  a  party  whom  the  court  by  such  order 
determines  to  be  without  any  title.*  A  decree  declaring  a 
legacy  void  as  to  one  defendant,  but  reserving  all  other 
questions,  is  not  such  a  final  decree  as  may  be  appealed 
from.^  And,  as  a  general  rule,  a  judgment  determining 
the  rights  of  some  of  the  parties  is  not  final  so  as  to  au- 
thorize an  appeal  until  it  has  settled  the  rights  of  all  the 
defendants.^ 

§  28.  Instances  of  Decrees  Final,  though  Some  Ques- 
tions Remain  Open.  —  If  a  suit  is  brought  by  an  express 
company  against  a  railway  company  to  compel  the  latter 
to  do  business  for  the  former  on  the  payment  of  lawful 
charges,  and  it  is  no  part  of  the  object  of  the  suit  to  have 
such  charges  definitely  settled  for  all  time,  a  decree  which 
establishes  the  express  company's  right,  adjudges  costs, 

1  Perkins  w.  Fourniqnet,  6  How.  206;  «  Peck  r.  Vandenlierg,   30  Cal.    11; 

Pulliam  V.  Christain,  6  How.  209.  Gates   v.   Salmon.' 2S   Cal.  320.     The 

■■^  Craig  V.  Steamer  Hartford,  1  Mc-  law  has  been  changed  by  act  of  March 

All.  91.  23,  1864. 

'Bronson  V.  R.  R.  Co.,  2Black,  531;  *  Chittenden   v.    M.    E.    Church,    8 

Ray  V.  Law,  3  Cranch,  179.     A  decree  How.  Pr.  327. 

disposing  of  a  cause,  but  leaving  the  ^  Harrison  v.  Famsworth,  1  Heisk. 

exact  amount  due  to  be  calculated  by  751;  Delap  v.  Hunter,  1  Sneed,   101; 

the  master,  and  to  be  by  him  reported  ^lartin  v.  Crow,  28  Tex.  614;  Wills  v. 

at  next  term,  is  final:  Meeku  Mathis,  State,  4  Tex.  App.  613;  Whitaker  v. 

1    Heisk.    534.     A   decree   dismissing  Gee,  61  Tex.  217;  Schultz  v.  McLean, 

certain   parts   of   a  bill   is  not  final:  76   Cal.    608;    Commonwealth  v.   Mc- 

Mayor  v.  Lamb,  60  Ga.  342.  Cleary,  92  Pa.  St.  188. 


§   28  FINAL    JUDGMENTS.  32 

awards  execution,  and  fixes  compensation  to  be  paid  is  final, 
though  leave  is  given  to  the  parties  to  apply  for  a  modifi- 
cation of  what  has  been  ordered  respecting  charges.    The 
efi'ect  of  the  decree  is  to  require  the  railway  to  carry  for  a 
reasonable  compensation,  and  the  permission  to  apply  for 
a  modification  in  respect  to  charges  was  necessary  be- 
cause "  the  rates  properly  chargeable  for  transportation 
vary  according  to  circumstances,"  and  cannot  be  reason- 
able unless  changed  from  time  to  time,  and  thereby  fitted 
to  changed  circumstances/    A  decree  is  final  which  directs 
the  sale  of  property  and  fixes  the  rights  and  interests  of 
the  respective  parties  therein,  though  the  officer  who  is 
to  make  the  sale  is  required,  after  paying  a  specified  claim, 
to  pay  the  surplus  in  his  hands  to  the  complainant  "  after 
deducting  such  costs  as  the  court  shall  decree  to  be  paid 
out  of  the  same."  ^    A  decree  in  other  respects  final  is  not 
rendered  interlocutory  by  a  direction  therein  contained, 
in  aid  of  the  execution  of  the  decree,  requiring  the  defend- 
ants to  account  concerning  certain  specified  matters,  and 
a  reservation  to  the  court  of  the  right  to  make  "  such  fur- 
ther directions  as  may  be  necessary  to  carry  this  decree 
into  efi'ect  concerning  costs,  or  as  may  be  equitable  and 
just."  ^     If,  in  an  action  to  recover  moneys  on  a  contract 
for  the  sale  of  land  and  to  subject  the  land  to  sale  for  such 
amount  as  should  be  found  due,  a  cross-petition  is  filed, 
alleging  the  existence  of  a  cloud  on  plaintiff's  title,  and 
the  court,  after  trial,  adjudges  that  the  cloud  has  been  re- 
moved, that  the  complainant  has  deposited  with  the  clerk 
deeds  conveying  to  defendant  a  clear  title,  that  a  specified 
amount  is  due  plaintiff,  that  such  amount  be  paid  to  the 
clerk  of  the  court  within  thirty  days,  and  in  default  thereof 
that    execution    issue   therefor,    and   that    on    payment 
thereof  by  defendant  the  deeds  be  delivered  to  him,  the 
provision  delaying  execution  and  declaring  that  the  deeds 

iSt  Louis    I.  M.,  &  S.  R'y  Co.  v.  237;  Parsons  v.  Robinson,   122  U.  S. 

Southern    Express    Co.,     108    U.     S.  112. 

24  3  Winthrop  I.   Co.  v.   Meeker,   109 

» In   Matter  of   Norton,   108  U.  S.  U.  S.  180. 


33  FINAL   JUDGMENTS.  §  29 

shall  be  delivered  only  after  payment,  does  not  prevent 
this  adjudication  from  being  a  final  judgment.^  Gener- 
ally, clauses  in  judgments  or  decrees  suspending  their 
operation  for  a  specified  time,  or  giving  defendant  a  period 
within  which  to  make  payment,  and  staying  execution  in 
the  mean  time,  are  not  regarded  as  rendering  interlocutory 
decrees  which  are  otherwise  final.^ 

§  29.    Interlocutory  Decrees  Defined  and  Classified.  — 

An  interlocutory  decree  is  one  made  "  pending  the  cause, 
and  before  a  final  hearing  on  the  merits.  A  final  decree 
is  one  which  disposes  of  the  cause,  either  by  sending  it 
out  of  the  court  before  a  hearing  is  had  on  the  merits,  or 
after  a  hearing  on  the  merits,  decreeing  either  in  favor  of 
or  against  the  prayer  of  the  bill."  But  no  order  or  de- 
cree which  does  not  preclude  further  proceedings  in  the 
case  in  the  court  below  should  be  considered  final.'  A 
decree  is  interlocutory  which  makes  no  provision  for  costs, 
and  in  which  the  right  is  reserved  to  the  parties  to  set  the 
cause  down  for  further  directions  not  inconsistent  with 
the  decree  already  made;*  and  so  is  a  decree  which  con- 
tains a  provision  for  a  reference  of  certain  matters,  and 
that  all  further  questions  and  directions  be  reserved  until 
the  coming  in  of  the  report  of  the  referee.     An  order  or 

-  Linsley    v.    Logan,    33    Ohio    St.  was  in  the  hands  of  a  designated  third 

376.  person,  subject  to  a  certain  agreement, 

'^  Fleming  v.  Boiling,  8  Gratt.  292;  and  to  report  what  was  a  reasonable 
Brown  v.  Van  Cleave,  86  Ky.  381.  An  compensation  for  a  trustee  in  whose 
extreme  case,  and  one  which  is  clearly  hands  the  fund  had  been.  This  de- 
not  in  consonance  with  the  other  au-  cree  was  held  final  and  appealable, 
thorities  upon  the  subject,  is  that  of  though  it  is  impossible  to  determine 
Hastie  v.  Aiken,  67  Ala.  313.  This  from  the  report  of  the  case  that  any- 
was  a  suit  by  which  complainants  thing  had  been  settled  bj'  it  except 
sought  to  reach  a  certain  fund  which  that  complainants  were  entitled  to  the 
had  been  in  the  hands  of  a  partner-  fund  as  personal  representatives  of  a 
ship,  the  members  of  which  were  de-  certain  decedent,  if  it  did  not  belong 
ceased.  Demurrers  interposed  to  the  to  another  person  as  representative  of 
complaint  were  overruled,  and  a  de-  another  decedent,  and  if  on  an  ac- 
cree  was  entered  declaring  comyilain-  counting  between  the  deceased  mem- 
ants  entitled  to  relief  and  ordering  a  bers  of  the  late  firm  something  should 
reference,  1.  To  ascertain  whether  the  be  found  due  the  decedent  v^hom  corn- 
fund  belonged  to  the  complainants  or  plainants  represented, 
another  person;  2.  To  state  an  account  *  Chouteau  v.  Rice,  1  Minn,  24. 
between  the  memljers  of  the  late  firm,  *  Williamson  v.  Field,  2  Barb.  Ch. 
and  to  find  what  amount  of  the  fund  281;  Harris  v.  Clark,  4  How.  Pr.  78. 
Judo.  I. —3 


§  29  FINAL   JUDGMENTS.  34 

decree  pro  confesso  for  an  injunction  restraining  the  use 
of  an  invention  is  interlocutory  merely,^  but  a  decree  dis- 
missing a  bill,''  or  dissolving  an  injunction  and  passing 
definitively  on  all  the  essential  points  in  issue,  is  final.* 
Interlocutory  decrees  are  entered  under  an  infinite  variety 
of  circumstances,  and  the  relief  afforded  corresponds  in 
variety  to  the  circumstances  demanding  it.  It  is  there- 
fore difficult,  and  perhaps  impossible,  to  formulate  any 
classification  which  will  include  every  order  or  interlocu- 
tory judgment  or  decree.  By  far  the  greater  number  of 
those  which  are  at  all  likely  to  be  mistaken  for  final  judg- 
ments or  decrees  fall  within  the  following  classification: 
1.  Those  whicl'i,  while  they  may  be  suiTicient  in  form  and 
substance  to  dispose  of  the  suit,  are  nevertheless,  by  law 
or  the  uniform  practice  of  the  court,  not  treated  as  final, 
until  the  happening  of  some  event  or  the  lapse  of  some 
period  of  time;  2.  Those  which,  though  they  may  grant 
the  relief  sought  by  the  suit,  are  temporary  or  condi- 
tional in  their  effect,  and  are  generally  entered  without 
any  previous  determination  of  the  rights  of  the  parties; 
3.  Those  which,  while  they  determine  the  rights  of  the 
parties  either  in  respect  to  the  whole  controversy  .or  some 
branch  of  it,  merely  ascertain  and  settle  something 
without  which  the  court  could  not  proceed  to  a  final  ad- 
judication, and  the  settlement  of  which  is  obviously  but 
preliminary  to  a  final  judgment  or  decree;  4.  Adjudica- 
tions of  one  or  more  issues,  but  leaving  undisposed  of 
some  issue  which  must  be  settled  before  the  rights  of  the 
parties  can  be  finally  determined;  6.  Orders  made  in  the 
progress  of  the  cause,  for  the  purpose  of  preserving  or 
managing  the  subject-matter  of  the  action,  or  bringing  it 
within  the  control  of  the  court,  to  the  end  that  the  final 
judgment  may  be  efiective;  and  6.  Orders,  judgments,  or 
decrees  made  in  a  cause  vacating  or  reversing  any  prior 
judgment   or   decree   therein,  whether   interlocutory   or 

'  Russell    V.    Lathrop,     122     Mass.         »  vSnell  r.  Dwi^ht,  121  Mass.  348. 
300.  8  ijaloy  v.  Collius,  30  La.  Ann.  63. 


35  FINAL    JUDGMENTS,  §§  30-32 

final,  if  the  cause  is  remanded  for  further  proceedings  or 
the  parties  otherwise  left  at  liberty  to  proceed  to  a  final 
judgment. 

§  30.  Provisional  Decrees  or  Judgments.  —  In  the  first 
class  of  interlocutory  decrees  are  those  taken  nisi  or  pro 
confesso.  These  decrees  are  designed  only  "to  prepare 
the  case  for  a  final  decree,"  and  no  matter  what  their  pro- 
visions, they  do  not  amount  to  final  adjudications.*  So 
under  the  practice  in  some  of  the  states,  a  motion  for  a 
new  trial  seasonably  filed  is  deemed  to  be  so  directly 
connected  with  the  judgment  that  "  so  long  as  it  remains 
undisposed  of  there  can  be  no  final  judgment  within  the 
meaning  of  the  statute  regulating  appeals." ' 

§  31.  Temporary  or  Alternative  Relief. — In  the  second 
class  of  interlocutory  decrees  and  judgments  fall  orders 
granting  injunctions  which  are  to  be  operative  only  dur- 
ing the  pendency  of  the  litigation,  or  until  the  further 
order  of  the  court,^  and  orders  for  alternative  writs  by 
which  a  party  is  commanded  to  do  or  not  to  do  some  act, 
or  else  to  show  cause  why  he  has  done  or  refrained  from 
doing  it. 

§  32.     Settling  Questions  Preliminary  to  Final  Relief.  — 

Instances  of  interlocutory  decrees  of  the  third  class  are 
very  numerous.  Thus  if  the  suit  is  for  the  dissolution 
of  a  partnership,  and  for  an  accounting  and  a  settlement 
of  the  partnership  business  and  the  division  of  its  assets, 
the  court  may  be  required  to  determine  whether  any  part- 
nership existed,  and  if  so,  whether  it  ought  to  be  dissolved, 
and  what  were  the  respective  interests  of  the  several  par- 
ties before  the  court  therein.  The  determination  of  these 
questions,  accompanied  with  a  direction  that  an  account 
be  taken,  will  not  be  deemed  a  final  adjudication,  unless 

'  Russell    B.    Lathrop,     122     Mass.  *  Verden  v.  Coleman,  18  How.  86; 

300.  Humeston  v.  Stainthorp,  2  Wall.  106; 

»  New  York,  C,  &  St.  L.  R.  R.  Co.  East  &  W.  T.  L.  Co.  v.  Williams,  71 

V.  Doane,  105  Ind.  92.  Tux.  414. 


§  32  FINAL   JUDGMENTS.  36 

the  decree  is  so  complete  that  nothing  remains  to  be  done 
except  to  follow  its  directions.^     In  suits  for  partition,  the 
courts  must  determine  the  interests  of  the  co-tenants,  and 
whether  partition  shall  be  made  by  a  sale  of  the  property, 
or  otherwise;   but  it  is  not  until  the  confirmation  of  the 
partition,  whether  by  sale  or  allotment,  that  a  final  decree 
exists.''     A  decree  that -parties  account  is  another  famil- 
iar instance  of  a  determination  preliminary  to  but  not 
constituting  a  final  judgment.'     A  decree  declaring  that 
complainant  is  entitled  to  have  lands  sold  to  pay  purchase- 
money  or  a  mortgage  debt  due  him  is  not  final  if  a  refer- 
ence is  ordered  to  ascertain  what  sum  remains  unpaid.* 
An  action  was  commenced  to  enforce  certain  liens  against 
real  estate,  and  a  judgment  therein  was  entered  directing 
that  a  sale  of  the  premises  be  made,  and  that  from  the 
proceeds  a  sum  specified  should  be  paid  to  discharge  one 
of  the  liens,  and  that  the  plaintiff  should  be  paid  an  addi- 
tional sum,  less  the  amount  due  from  him  to  the  defendant 
for  rent  of  the  premises,  and  that  a  reference  be  had  to 
ascertain  the  amount  of  such  rent.     An  appeal  was  taken 
from  this  judgment.     The  appellate  court,  on  motion  to 
dismiss  the  appeal,  considered  that  as  the  object  of  the 
action  was  to  ascertain  to  whom  the  whole  proceeds  to  be 
derived  from  a  sale  of  the  premises  should  belong,  and 
that  as  this  could  not  be  ascertained  until  it  was  known 
what  amount  ought  to  be  deducted  from  the  plaintiff's 
claims  for  rents,  the  judgment  entered  by  the  court  below 
was  not  a  final  judgment.^     Obviously,  a  decree  of  fore- 

1  Gray  V.  Palmer,  9  Cal.  616;  Kings-  Contra,  Ansley  v.  Robinson,  16  Ala. 
Imry  v.  Kingsbury,  20  Mich.  212;  793;  Bantou  v.  Campbell,  2  Dana,  421 ; 
Rhodes  v.  Williams,  12  Nev.  20;  Darmouth  v.  Kloch,  28  Mich.  163; 
Cocke's  Adm'r  v.  Gilpin,  1  Rob.   (Va.)  Williams  v.  Wells,  62  Iowa,  740. 

20-  White  v.  Conway,  66  Cal.  383.  *  Beitler  v.  Zeigler,  1  Penr.  &  W.  135; 

2  Holloway  v.  Holloway,  97  Mo.  628;  Raynor  v.  Raynor,  94  N.  Y.  248;  Jack- 
10  Am.  St.  Rep.  339;  Turpint).  Turpin,     son  Co.  v.  Gullatt,  84  Ala.  243. 

88  Mo.  337;  Murray  v.  Yates,  73  Mo.  *  Walker  v.  Crawford,  70  Ala.  567; 

13;  Greenu  Fisk.  103U.  S.  518;  Gates  Grant  v.   Phoenix   M.  L.   I.  Co.,   106 

V.  Salmon.  28  Cal.  320;  Peck  v.  Van-  U.  S.  429;  Parsons   v.    Robinson,    122 

denburg,  30  Cal.  11;  Beebe  v.  Griffing,  U.  S.  112;  Burlington  etc.  R'y  Co.  v. 

6  N.  Y.  465;    Mills  v.   Miller,  2  Neb.  Simmons,  123  U.  S.  52. 

299;  Gesell's  Appeal,  84  Pa.  St  238.  *  Thompkins  v.  Hyatt,  19  N.  Y.  535. 


37  FINAL   JUDGMENTS.  §§  32  a,  32  b 

closure  cannot  be  final  if  it  neither  determines  tbe  amount 
to  be  paid  nor  ascertains  or  describes  the  property  to  be 
sold;^  nor  if  it  merely  declares  the  amount  due,  without 
awarding  to  plaintiff  the  only  relief  to  which  he  is  entitled 
in  the  suit,  to  wit,  a  direction  or  judgment  that  the  prop- 
erty be  sold  and  the  proceeds  applied  to  the  satisfaction 
of  the  mortgage  debt,^  While  the  question  of  costs  can 
hardly  be  regarded  as  forming  a  distinct  issue  in  the  case, 
nor  its  reservation  as  necessarily  preventing  a  final  deter- 
mination of  the  rights  of  the  parties,  yet  in  some  states  a 
judgment  or  decree,  otherwise  final,  reserving  this  ques- 
tion, is  treated  as  interlocutory.^ 

§  82  a.  Interlocutory.  Decisions  of  Part  only  of  the 
Issues.  —  Decisions  upon  demurrers  to  the  pleadings  or 
upon  pleas  in  abatement,  and  all  orders  disposing  of  some 
of  the  issues  while  others  remain  to  be  decided,'*  or  deter- 
mining the  rights  of  some  of  the  parties,  leaving  the  rights 
of  others  undetermined,  constitute  examples  of  interlocu- 
tory decrees  and  judgments  of  our  fourth  class.* 

§  82  b.  Interlocutory.  Orders  Looking  to  Preserving 
Property  Pendente  Lite.  —  Orders  appointing  receivers  to 
take  charge  of  property,  or  to  collect. the  rents  and  profits 
thereof  during  the  pendency  of  the  suit,^  or  to  pay  money 
into  court  or  to  some  officer  thereof  for  preservation  dur- 
ing the  pendency  of  litigation  as  to  its  ownership,^  are  not 
final  judgments. 

I  Railroad  Co.  v.  Swasey,  23  Wall.  «  East  &  W.  T.  L.  Co.  v.  Williams, 

405.  71  Tex,  444;  Farson  v.  Gorham,  117  111. 

'  Crim  V.  Kessing,  89  Cal.  478.  137;    Hottensteia  v.   Conrad,  5   Kan. 

»  Williams  v.  Field,  2  Wis.  421;  60  249;  Eaton  &  H.  R.  R.  Co.  v.  Varnura, 

Am.  Dec.  426;  Dickinson    v.  Codwise,  10  Ohio  St.  622;  Maysville  &  L.  R.  R. 

11   Paige,  189;  Williamson  v.  Field,  2  Co.  v.  Punnett,  15  B.  Mon.'47;  Kansas 

Barb.  Ch.  281.     Contra,  McFarland  v.  R.  M.  Co.  v.  A.,  T.,  &  S.  F.  R.  R.  Co., 

Hall's  Heirs,  17  Tex.  676,  31  Kan.  90;  Fuller  v.  Adams,  12  Ind. 

*  Keystone  M.  &  I,  Co,  v.  Martin,  559,     Contra,    Lewis   v.    Campau,    14 

132  U.   S.  91;   Hayes  v.   CaldM'ell,   5  Mich.  458;  90  Am.  Dec,  245;  Taylor  t>, 

Gilm.  33;  Phelps  v.  Fickes,  63  111,  201;  Swett,  40  Mich.  736. 

Slagle  V.  Rodmer,  58  Ind.  465.  '  Louisiana   Bank  v.  Whitney,   121 

»  Owens  V.  Mitchell,  33  Tex,  228,  U.  S.  284. 


§§   32  C,  33  FINAL    JUDGMENTS.  38 

§  32  c.  Reversing  and  Vacating  Decrees,  Judgments, 
and  Orders.  —  Granting  a  new  trial,  vacating  a  judgment, 
order,  or  decree  on  motion,  or  reversing  it  on  apj^eal  or 
writ  of  error,  or  any  other  adjudication  by  which  a  judg- 
ment, order,  or  decree  is  set  aside,  and  the  cause  left  open 
for  further  proceedings  which  may  and  must  be  prose- 
cuted before  the  final  judgment  or  decree  can  be  entered, 
is  not  a  final  judgment.^  Hence,  though  the  highest  ap- 
pellate court  of  a  state  may  have  granted  a  new  trial,  or 
reversed  a  judgment  or  decree  and  remanded  the  cause 
for  further  proceedings  in  the  trial  court,  no  appeal  can 
be  taken  to  the  supreme  court  of  the  United  States  until 
after  such  proceedings  have  been  taken  and  have  resulted 
in  a  final  judgment  or  decree.^  But  if  a  judgment  of 
reversal  contains  directions  for  the  entry  of  judgment  in 
the  trial  court,  so  that  the  latter  has  nothing  to  do  except 
to  render  and  enter  judgment  as  directed,  the  judgment  of 
reversal  is  a  final  judgment  and  reviewable  as  such.^ 

§  33.  Appeals  Unnecessary  not  Permitted.  —  The  policy 
of  the  laws  of  the  several  states  and  of  the  United  States 
is  to  prevent  unnecessary  appeals.  The  appellate  courts 
will  not  review  cases  by  piecemeal.  The  interests  of  liti- 
gants require  that  causes  should  not  be  prematurely 
brought  to  the  higher  courts.  The  errors  complained  of 
might  be  corrected  in  the  court  in  which  they  originated; 
or  the  party  injured  by  them  might,  notwithstanding  the 
injury,  have  final  judgment  in  his  favor.  If  a  judgment, 
interlocutory  in  its  nature,  were  the  subject  of  appeal,  each 
of  such  judgments  rendered  in  the  case  could  be  brought 
before  the  appellate  court,  and  litigants  harassed  by  use- 
less delay  and  expense  and  the  courts  burdened  with 
unnecessary  labor. 

»  House  V.   Wright,    22    Ind.    383;  Higgins  v.  Brown,  5  Col.  345;  Brown 

Byersv.  Butterfield,  33  Mo.  376;  Smith  v.  Edgecton,  14  Neb.  453. 
V.  Adams,  130  U.  S.  167;  McCulloch  v.         ^  Bostwick  v.  Brinkerhoff,  106  U.  S. 

Dodge,  8  Kan.  476;  Lawson  ?'.  Moore,  3;  Johnson  v.  Keith,  117  U.  S.  199. 
44  Ala.  274;  In  re  Studdarb,  30  Minn.         ^  Mowes    v.    Fletcher,     114    U.    S. 

553;  Houston  v.  Moore,  3  Wheat.  167;  127. 


39  FINAL    JUDGMENTS.  §§  34,  35 

§  34.  Judgment,  when  Appealable.  —  The  general  rule 
recognized  by  the  courts  of  the  United  States  and  by  the 
courts  of  most,  if  not  of  all,  the  states  is,  that  no  judgment 
or  decree  will  be  regarded  as  final  v/ithin  the  meaning  of 
the  statutes  in  reference  to  appeals,  unless  all  the  issues 
of  law  and  of  fact  necessary  to  be  determined  were  deter- 
mined, and  the  case  completely  disposed  of,  so  far  as  the 
court  had  power  to  dispose  of  it.^ 

§  35.  Exceptions.  —  But  owing  to  particular  circum- 
stances and  hardships,  the  courts  have  refused  to  dismiss 
appeals  from  some  judgments  which  did  not  completely 
dispose  of  the  cases  in  which  they  were  entered.  These 
judgments  determined  particular  matters  in  controversy, 
and  were  of  such  a  nature  that  they  could  be  immediately 
enforced,  and  by  their  enforcement  could  deprive  the 
party  against  whom  they  were  rendered  of  all  benefits 
which  he  might  obtain  from  an  appeal  at  any  subsequent 
stage  of  the  proceedings.^  To  avoid  the  necessity  of  being 
called  upon  to  review  such  judgments,  the  superior  courts 
have  cautioned  the  inferior  ones,  and  endeavored  to  im- 
press upon  them  the  evils  resulting  from  the  practice  of 
entering  interlocutory  judgments  capable  of  being  at  once 
enforced  against  a  party,  and  doing  him  irretrievable 
damage  before  a  final  judgment  can  be  entered.^     Prob- 

1  McCollum  V.   Eager,   2   How.  61;  seems  to  deny  the  right  of  appeal  even 

Craighead   v.  Wilson,    IS    How.    199;  where  the  judgment  is  capable  of  en- 

Ayres  v.  Carver,  17  How.  594;  Craw-  forcement   against   the   parties  to  it. 

ford  V.  Points,  13  How.  11;  Mordecai  The    suit  was  by   C.   against   A.    M., 

V.  Lindsay,  19  How.  200;  Montgomery  M.  M.,  and  L.  M.     Judgment  by  de- 

V.  Anderson,  21  How.  386;  Barnard  v.  fault  was  entered  against  M.  M.  and 

Giljson,  7  How.  650;  Pepper  v.  Dun-  L.  M.,  and   the   cause  continued   for 

lap,  5  How.  51;  Winn  v.  Jackson,  12  service    against    A.    M.      From    this 

Wheat.  135;  The  Palmyra,  10  Wheat,  judgment  an  appeal  was  taken,  but  by 

502;  Chace  v.  Vasquez,  11  Wheat.  429;  whom  does  not  appear.     In  consider- 

Hiriart  v.  Ballon,  9  Pet.  156;  Ruther-  ing  the  appeal,  the  court  said:  "When 

ford  V.  Fisher,  4  Dall.  22;    Young  v.  the  whole  of  the  matter  in  controversy 

Grundy,  6  Cranch,  51.  is   finally   disposed   of  as   to   all   the 

'^  Merle    v.    Andrews,    4    Tex.    200;  parties,  then  there  is  a  final  judgment, 

Stovall  V.  Banks,  10  Wall.  583.  and  not  before,  from  which  an  appeal 

^Barnard  v.  Gib.son,  7  How.  650;  or  writ  of  error  can  be  taken."  But 
Forgay  v.  Conrad,  6  How.  201.  The  as  there  are  intimations  in  the  opinion 
case  of  Martin  v.  Crow,  28  Tex.  614,  that  the  court  seemed  to  be  consider- 
so  far  as  we  are  able  to  understand  it,  ing  the  rights  of  A.  M.,  who  was  not 


§  35  FINAL    JUDGMENTS.  40 

ably  to  avoid  special  hardships  resulting  from  the  failure 
to  give  a  right  of  appeal  from  other  than  a  final  judgment 
or  decree,  the  following  have  been  decided,  for  the  pur- 
poses of  an  appeal,  to  be  final  judgments:  Orders  appoint- 
ing receivers  and  directing  them  to  take  possession  of 
property;'  directing  that  partition  be  made,  and  deter- 
mining the  interests  of  the  respective  parties  to  the 
action;^  fixing  the  amount  of  alimony  to  be  paid  pendente 
lite,  and  directing  its  immediate  payment;*  removing  or 
refusing  to  remove  a  cause  to  another  court  for  trial.* 

a  party  to  the  judgment,  it  may  be  163;    Williams    v.    Wells,    62    Iowa, 

that  he  was  the  appellant.     If  so,  the  740. 

general  language  of  the  court  does  not  ^  Daniels    v.    Daniels,    9    Col.    133; 

raise  any  couliiet  with  the  rule  of  the  Sharon  v.  Sharon,  67  Cal.  185. 

cases  cited  above.  *  McMillan   v.   State,   68    Md.    307; 

1  Lewis  V.  Campau,  14  Mich.  458;  Home  L.  I,  Co.  v.  Dunn,  20  Ohio  St. 
90  Am.  Dec.  245.  175;  5  Am.  Rep.  642.     Contra,  Vance 

2  Ansley  v.  Robinson,  16  Ala.  v.  Hogue,  35  Tex.  432;  Jones  v.  Daven- 
793;  Banton  v.  Campbell,  2  Dana,  port,  7  Cold.  145;  Jackson  v.  Alabama 
421;    Darmouth  v.   Kloch,   28  Mich.  G.  S.  R.  R.  Co.,  58  Miss.  648. 


41  THE    ENTRY    OF    JUDGMENTS.  §  37 

CHAPTER   II. 

THE  ENTRY   OF  JUDGMENTS. 

§  37.     Importance  of. 

§  38.     Is  a  ministerial  act. 

§  39.     A  distinction  between  formal  entry  of  judgments  and  decrees. 

§  39  a.     The  time  of  the  entry. 

§  40.     The  judgment-book. 

§  41.     Entry  in  improper  book. 

§  42.     On  verdicts. 

§  43.     Against  joint  parties. 

§  44,     Against  joint  contractors. 

§  45.     Construction  of  entry. 

§§  46,  47.     Form  of  entry. 

§  4S.     Use  of  t 

§  48  a.     Judgment  in  figures. 

§  49.     Filling  blanks'. 

§  50.'    Sufficiency  of  entries  —  General  tests  of. 

§  50  a.     Designation  of  the  parties. 

§  50  b.     Designation  of  amount. 

§  50  c.     Designation  of  property. 

§  50  d.     Judgments  of  conviction. 

§  50  e.     Signature  of  the  judge. 

§§  51,  52.     InsufScient  entries. 

§  53.     In  justices'  courts. 

§  53  a.     Failure  of  justice  to  enter. 

§  54.     Reference  to  other  cases. 

§  55.     On  awards. 

§  37.  Importance  of.  —  The  promptings  of  the  most 
ordinary  prudence  suggest  that  whatever,  in  the  affairs  of 
men,  has  been  so  involved  in  doubt  and  controversy  as  to 
require  judicial  investigation  ought,  when  made  certain 
by  a  final  determination,  to  be  preserved  so  by  some 
permanent  and  easily  understood  memorial.  Hence  all 
courts  and  all  tribunals  possessing  judicial  functions  are 
required  by  the  written  or  unwritten  law,  and  often  by 
both,  to  reduce  their  decisions  to  writing  in  some  book  or 
record  kept  for  that  purpose.  The  requirement  is  believed 
to  be  of  universal  application.^     So  that  if  any  judgment 

*  Meeker  v.  Van  Rensselaer,  15  427;  Davidson  v.  Murphy,  13  Conn. 
Wend  397;  Jones  v.  Walker,  5  Yerg.     213;  Boker  v.  Bronson,  5  Blatchf.  5. 


§  38  THE    ENTRY    OF    JUDGMENTS.  42 

or  decree  of  any  court,  whether  of  record  or  not  of  record, 
whether  subordinate  or  appellate,  fails  to  be  entered  upon 
its  records,  the  failure  is  attributable  to  the  negligence  or 
inadvertence  of  its  officers,  and  not  to  the  countenance 
and  support  of  the  law. 

While  the  entry  is  not  the  judgment,  its  absence  tends 
strongly  to  indicate  that  no  judgment  exists,  and  in  doubt- 
ful cases  may  be  sufficient  to  sustain  the  issue  that  what- 
ever has  been  done  has  been  but  preliminary  to  judgment. 
Thus  a  memorandum  handed  down  by  an  appellate  court, 
of  its  decision  on  appeal,  is  not  a  judgment,  but  simply 
authority  to  enter  one.^  An  entry  made  by  a  judge  in  his 
calendar  is  not  the  judgment  in  the  case.  It  is  intended 
merely  for  the  guidance  of  the  clerk  in  entering  orders 
and  judgments,  and  cannot  prevent  the  judge  from  sub- 
sequently signing  and  the  clerk  enrolling  the  final  judg- 
ment.^ The  entry,  though  without  it  the  judgment  be 
conceded  to  exist,  may  be  important  in  other  respects 
besides  that  of  establishing  the  terms  of  the  judgment,  as 
where,  under  the  statute  of  a  state,  a  judgment  cannot  be 
docketed  so  as  to  constitute  a  lien  until  after  its  actual 
entry ,^  or  where  judgments  are  in  certain  cases  required 
to  be  recorded  before  they  can  affect  innocent  purchasers 
or  encumbrancers;^  for  unless  the  judgment  is  entered,  no 
copy  of  it  can  exist  to  be  filed  for  record. 

§  38.  Ministerial  Act.  —  Expressions  occasionally  find 
their  way  into  reports  and  text-books,  indicating  that  the 
entry  is  essential  to  the  existence  and  force  of  the  judg- 
ment. These  expressions  have  escaped  from  their  authors 
when  writing  of  matters  of  evidence,  and  applying  the 
general  rule  that  in  each  case  the  best  testimony  which  is 
capable  of  being  produced  must  be  received,  to  the  exclu- 
sion of  every  means  of  proof  less  satisfactory  and  less  au- 
thentic.    The  rendition  of  a  judgment  is  a  judicial  act; 

1  Knapp  V.  Roche,  82  N.  Y.  366.  533;      Eastham     v.    Sallis,    60    Tex. 

«  Traer  v.  Whitman,  56  Iowa,  443.        576. 

'  Rockwood  V.  Daveuport,  37  Minn.         *  Witter  v.  Dudley,  42  Ala.  616. 


43  THE    ENTRY    OF   JUDGMENTS.  §  38 

its  entry  upon  the  record  is  merely  ministerial.^  A  judg- 
ment is  not  what  is  entered,  but  what  is  ordered  and  con- 
sidered." The  entry  may  express  more  or  less  than  was 
directed  by  the  court,  or  it  may  be  neglected  altogether; 
yet  in  neither  of  these  cases  is  the  judgment  of  the  court 
any  less  its  judgment  than  though  it  were  accurately  en- 
tered. In  the  very  nature  of  things,  the  act  must  be  per- 
fect before  its  history  can  be  so;  and  the  imperfection  or 
neglect  of  its  history  fails  to  modify  or  obliterate  the  act. 
That  which  the  court  performs  judicially,  or  orders  to  be 
performed,  is  not  to  be  avoided  by  the  action  or  want  of 
action  of  the  judges  or  other  officers  of  the  court  in  their 
ministerial  capacity.  It  is,  therefore,  not  indispensable 
to  the  validity  of  an  execution  and  a  sale  made  thereunder 
that  the  judgment  should  have  been  actually  entered 
before  the  writ  issued.'  While  its  entry  of  record  is  not 
indispensable  to  a  judgment,  a  judgment  is  essential  to 
the  validity  of  an  entry.  The  ministerial  act  of  the  clerk 
must  be  supported  by  a  judicial  act  pronounced  by  the 
court  in  express  terms,  or  in  contemplation  of  law.  The 
clerk  is  in  some  contingencies  authorized  to  enter  judg- 
ment by  default;  but  in  these  instances  the  court,  in  con- 
templation of  law,  pronounces  the  judgment,  though  as  a 
matter  of  fact  no  action  may  be  taken  by  the  presiding 
judge.  In  all  other  cases  the  entry  of  judgment  by  the 
clerk  must  be  supported  by  the  previous  order  or  direction 
of  the  court,  or  it  will  be  treated  as  void.*  In  the  case  of 
judgments,  they  must  first  be  entered  upon  the  record 
before  they  are  admissible  as  evidence  in  other  actions.'' 
The  record,  if  not  made  up,  or  if  lost  or  destroyed,  should 

'  Estate  of   Cook,   77  Cal.   220;    11  *  Los  Angeles  Co.  Bank  v.  Raynor, 

Am.  St.  Rep,  267;  Schuster  v.  Rader,  61  Cal.  145.     So  a  judgment  of  convic- 

13    Col.   329;    Estate  of   Newman,    73  tinn  will  sustain  a  commitment  issued 

Cal.     213;     7     Am.     St.     Rep.     146;  thereon,  though  it  has  not    yet   been 

Matthews   v.   Houghton,   11  Me.  377;  formally  entered:  Ex  parte  Raye,  63 

Fish  V.  Emerson,  44  N.  Y.  376;  Criin  v.  Cal.  491. 

Kessing,  89  Cal.  478;  Couwell  v.  Kuy-  *  Lee  r.  Carrollton  Savings  and  Loan 

kendalf,  29  Kan.  707.  Association,  58  Md.  301. 

■'  Davis  V.    Shaver.   1   Phill.  (N.  C.)  "  Hall  v.  Hudson,  20  Ala.  284. 
18;  91  Am.  Dec.  92. 


§  39  THE    ENTRY    OF    JUDGMENTS.  44 

be  perfected  or  replaced  by  appropriate  proceedings  in 
the  court  where  the  judgment  was  pronounced. 

§  39.    Distinction  between  Judgments  and  Decrees.  — 

In  respect  to  the  entr}^  of  judgments  and  of  decrees  upon 
the  record,  and  the  consequent  effect  of  their  want  of  en- 
try, as  affecting  their  admissibility  as  evidence  in  other 
cases,  there  seems  to  be  this  radical  difference:  a  judg- 
ment can  speak  but  by  the  record;  a  decree,  in  the  ab- 
sence of  any  statute  or  provision  to  the  contrary,  takes 
effect  immediately  after  being  pronounced  by  the  court. 
Its  enrollment  adds  nothing  to  its  force  nor  to  its  compe- 
tency as  evidence.^  This  distinction  arose  from  the  differ- 
ences in  the  proceedings  at  law  and  in  equity.  It  is 
inherent  in  the  nature  of  the  two  systems.  Though  the 
code  declares  in  general  terms  that  there  shall  be  but  one 
form  of  action,  and  thereby,  in  a  general  manner,  attempts 
to  abolish  the  distinctions  before  existing  in  the  pursuit 
of  legal  and  of  equitable  remedies,  it  has  not  altogether 
succeeded.  The  necessity  for  the  recognition  of  equita- 
ble rights,  and  for  granting  equitable  relief,  continues  as 
before  the  adoption  of  the  code.  The  proceedings  occa- 
sioned by  this  necessity  are  substantially  as  they  were 
under  the  old  system.  Among  the  rules  of  the  old 
system  not  abrogated  by  the  new  is  the  one  that  a  de- 
cree pronounced  by  the  court  and  reduced  to  writing 
is  admissible  in  evidence,  independent  of  the  fact  of 
its  enrollment  or  entry  in  the  judgment-book.^  But 
the  distinction  between  a  decree  and  an  order  for  a 
decree  must  not  be  overlooked.  "  No  decree  can  be  said 
to  be  entered  of  record  until  it  is  formally  drawn  out 
and  filed  by  the  clerk.  A  mere  order  for  a  decree,  before 
it  is  extended  in  due  form  and  in  apt  and  technical  lan- 

'  Bates  V.    Delavan,   5   Paige,    303;  entry,    are    irregular    and    voidable: 

Winans  v.  Dunham,  5  Wend.  47;  But-  Drummond     v.     Anderson,    3    Grant 

ler  V.  Lee,  3  Keyes,  73.     But  in  Can-  (U.  C.)  151. 

ada  the  decree  must  be  entered  in  the  ^  Lynch  v.  Rome  Gas  Light  Co.,  42 

register's   book,    and   all   proceedings  Barb.  591. 
based  thereon,  and  taken  before  such 


45  THE    ENTRY    OF    JUDGMENTS.  §  89  a 

guage,  cannot  be  held  to  be  a  complete  record  of  the  judg- 
ment of  the  court."  ^ 

§  39  a.  The  Time  of  the  Entry  of  Judgment.— At  the 
common  law,  a  judgment  took  effect  as  of  the  first  day  of 
the  term  at  which  it  was  rendered,  in  all  cases  where  it 
might  have  been  then  rendered;^  while  in  some  parts  of 
the  United  States  the  reverse  rule  obtains,  and  judgments 
take  effect  as  of  the  last  day  of  such  term.^  The  purpose 
of  these  rules  is  merely  to  place  judgments  rendered  at 
the  same  term  upon  an  equality,  where  all  were  rendered 
in  cases  which  were  ready  for  judgment  at  the  commence- 
ment of  the  term;  they  do  not  prescribe  or  limit  the  time 
in  which  the  clerical  labor  of  entering  j\idgment  may  be 
performed.  Statutes  have  been  enacted  specifying  the 
time  within  which  judgments  should  be  entered,  either 
in  all  cases,  or  in  particular  cases  enumerated  in  the  stat- 
ute. Thus  in  Kentucky,  judgments,  orders,  and  decrees 
were  required  to  be  drawn  up  and  recorded  by  the  clerk 
on  the  evening  of  each  day.*  In  California,  when  trial 
by  jury  has  been  had,  judgment  must  be  entered  by  the 
clerk  in  conformity  with  the  verdict  within  twenty-four 
hours  after  its  rendition.^  In  other  instances,  statutes 
have  forbidden  the  entry  of  judgment  until  after  the  lapse 
of  a  designated  period.  A  judgment  entered  before  the 
time  allowed  by  law,  or  the  order  of  the  court,  or  the 
agreement  of  the  parties,  is  irregular,  and  liable  to  be 
vacated  on  motion;^  but  it  is  not  void.^  If  the  statute 
requires  four  days  to  be  given  between  the  filing  of  a 
decision  and  the  entry  of  judgment,  four  full  calendar 

*  Thompsons.  Goulding,  5  Allen,  81;  *  Raymond  v.  Smith,  1  Met.  (Ky.) 

Gilpatrick  v.  Glidden,  82  Me.  201.  65;  71  Am.  Dec.  458. 

•^  Farley  v.  Lea,  4  Dev.  &  B.  169;  32  ^  Cal.  Code  Civ.  Proc,  sec.  664. 

Am.  Dec.   680;    Withers    v.   Carter,  4  *  Marvin     v.     Marvin,     75     N.    Y. 

Gratt.  407;  50  Am.  Dec.  78;  Faust  v.  240. 

Trife,  8  Jones,  494;  Wright  v.  Mills,  '  Lyons  v.  Cooledge,  80  111.  529;  In 

4  Hurl.  &  N.  488.  re  Newman,  75   Cal.  213;   7  Am.  St. 

^  Bradish  V.  State,  35  Vt.  452;  Chase  Rep.  146;   Mitchell    v.   Aton,  37  Kan. 

V.  Gilman,  15  Me.  64;  Herring  v.  Pol-  33;  1  Am.  St.  Rep.  231;  Essig  d.  Lower, 

ley,  S  Mrtss.  113;  Goodail  v.  Harris,  20  120  Ind.  239 
N".  H.  363. 


§  39  a  THE    ENTRY    OF    JUDGMENTS.  46 

daj^s  must  be  allowed,  and  the  rule  of  computation  which 
excludes  the  first  day  but  includes  the  last  is  not  applica- 
ble.' We  shall  hereafter  show  that  if  a  judgment  is  not 
entered  at  the  proper  time,  its  entry  nunc  pro  tunc  will  be 
directed  by  the  court,  because  it  will  not  permit  its  judg- 
ments to  be  annulled  through  the  mere  failure  of  its  clerk 
to  enter  them.  It  follows  from  this  that  a  clerk  who  has 
failed  to  enter  judgment  within  the  time  directed  has 
omitted  to  perform  his  duty  at  the  most  appropriate  time, 
but  that  its  performance  is  still  due  from  him,  and  he 
should  proceed  with  it,  notwithstanding  the  lapse  of  the 
time  designated  in  the  statute.  When  he  does  enter  the 
judgment  it  is  as  valid  as  if  entered  in  due  time;^  though 
in  the  mean  tim*e  the  judge  who  pronounced  it  has  gone 
out  of  office.^  Unless  some  statute  has  given  the  court 
power  to  act  judicially  in  vacation,  there  is,  in  contempla- 
tion of  law,  no  court  except  in  term  time,  and  a  judgment ' 
rendered  in  the  interval  between  two  terms  is  therefore 
void.*  The  clerk  may,  however,  proceed  with  his  duty  to 
enter  judgments  in  vacation  as  well  as  in  term  time,  if  the 
judgments  themselves  were  rendered  at  a  time  when  the 
court  was  authorized  to  render  them.^  There  ought,  how- 
ever, when  judgment  is  entered  after  the  expiration  of 
the  term,  to  be  some  memorandum  in  the  minutes  of  the 
court  sufiicient  to  guide  the  clerk  in  making  his  entries, 
and  where  such  was  not  the  case  it  was  held  that  a  judg- 
ment might  be  stricken  out  on  motion.®  In  Nebraska  it 
has  been  decided  to  be  improper  to  render  judgment  and 
direct  it  to  be  entered  when  the  pleadings  in  the  case  had 
all  been  lost,'  on  the  ground,  we  presume,  that  the  court 
ought  first  to  proceed  to  supply  its  lost  records,  so  that 
when  judgment  should  be  entered  there  could  be  a  com- 

'  Marvin  v.  Marvin,  75  N.  Y.  240.  visors  v.  Sullivan,  51  Wis.  115;  Sieber 

"^  Buudy  V.  Maginess,  76   Cal.  532;  v.   Friiik,  7  Col.  148;  Lind  v.  Adams, 

Waters  v.  Dumas,  75  Cal.  563,  10  Iowa,  398;  77  Am.  Dec.  123. 

2  Crim  V.  Kessing,  89  Cal.  478.  ^  Montgomery  v.  Murphy,  19   Mi 

*  Post,  sec.  121.  576;  81  Am.  Dec.  652. 

*  Myers  v.  Funk,  51  Iowa,  92;   IlifiF  '  Grimison    v.     Russell,     11     Neb. 
V.  Arnott,  31  Kan.  672;  County  Super-  469. 


47  THE    ENTRY    OF    JUDGMENTS.  §  40 

plete  judgment  roll,  upon  which  any  party  feeling  himself 
aggrieved  might  seek  relief  by  appeal  or  otherwise. 

§  40.     In    Judgment-book,  —  The    code    requires    the 
keeping  of  a  judgment-book  by  the  clerk,  in  which  every 
judgment  must  be  entered.^     In  no  case  ought  this  re- 
quirement to  be  dispensed  with.     It  applies  as  well  where 
the  decision  of  the  judge  is  made  in  writing  and  filed  as 
in  any  other  case.^     The  authority  of  the  clerk  to  make 
this  formal  entry  is  founded  on  a  judgment  already  valid, 
and  whose  validity  is  not  destroyed  by  his  failure  to  enter 
it.     A  judgment  drawn  up  in  the  form  in  which  it  was 
intended  to  be  entered,  signed  by  the  judge,  and  filed  in 
the  cause,  is  the  judgment  of  the  court  at  that  time  and 
of  that  term,  although  execution  should  not  be  issued 
upon  it  then.^     The  action  of  the  clerk,  being  non-judicial, 
may  take  place  at  any  time  afterward.    The  usual  custom, 
perhaps,  is  for  him  to  wait  for  leisure  moments  to  perform 
this  duty.     In  many  cases  the  record  is  not  completed 
until  after  the  adjournment  of  the  term.     And  this  prac- 
tice  seems  to  have   prevailed  at  common  law.'*     As  the 
judgment  is  final  before  its  formal  entry  in  this  book,  a 
statute  providing  that  an  appeal  may  be  perfected  within 
a  specified  time  from  the  "  rendition  "  of  the  judgment 
certainly  commences  to  run  from  the  time  of  the  drawing 
up  and  signing  of  the  judgment,  and  filing  it  among  the 
papers  in  the  case.^     The  language  used  in  the  opinion 
of  the  court  in  the  case  of  Genella  v.  Eelyea,  32  Cal.  159, 
though   not   necessary  to   the   decision  of  that  case,  is 
worthy  of  citation,  as  founded  upon  reason.     It  indicates 
that  the  time  for  appeal  begins  to  run  though  no  judg- 
ment is  filed.     "  The  court  announced  its  judgment  and 

^  N.  Y.  Code,  sec.   1236;  Cal.  Code  which  does  not  vitiate  the  iudgment: 

Civ.  Proc.,  sec.  6G8.  Hotchkiss  v.   Cuttiiif;,    14  Minn.   542; 

2  S.  &  S.  Plank  Road  Co.  v.  Thatch-  Jorgensen  v.  Griffin,  14  Minn.  41)6. 
er,  6  How.  Pr.  226.  *  Osborne     v.     Toomer,     6     Jones, 

3  Casement  v.  Ringgold,  28  Cal.  .335;  440. 

McMillan  v.  Richards,  12  Cal.  467.  *  Gray  v.  Palmer,  28  Cal.  416;  Ge- 
The  omission  of  the  clerk  to  sign  a  nella  v.  Relyea,  32  Cal.  159;  Kehoe  v. 
decree  is  at  most  a  mere  irregularity     Blethen,  10  Nev.  445. 


§§  41,  42       THE  ENTRY  OF  JUDGMENTS.  48 

the  order  for  judgment  was  entered  in  the  minutes  of  the 
court  on  the  15th  of  August,  1865.  The  judgment  was 
therefore  rendered  and  the  time  for  taking  an  appeal  com- 
menced to  run  on  that  day." 

§  41.  Use  of  Improper  Book. — If,  as  in  California,^  the 
clerk  is  required,  in  addition  to  the  judgment-book,  to 
keep  a  "register  of  actions,"  and  he,  neglecting  to  keep 
the  first  named,  copies  judgments  into  the  latter,  they 
are  not  therefore  invalid.  The  substantial  purpose  of 
the  statute  is  accomplished  although  the  two  books  are 
united.  No  harm  results  to  any  one  from  this  union;^ 
but,  independent  of  the  considerations  named,  the  judg- 
ments should  be  sustained.  If,  as  the  authorities  state, 
judgments  are  valid  when  not  entered  in  any  book,  they 
surely  ought  to  be  equally  valid  if  entered  in  some  record 
of  the  court,  though  not  in  the  one  designed  for  that 
purpose.^ 

§  42.  On  Verdicts.  —  The  Code  of  Civil  Procedure  in 
California*  requires  the  clerk  to  enter  judgment  in  con- 
formity to  the  verdict  within  twenty-four  hours  after  the 
rendition  of  the  verdict,  unless  the  court  orders  the  case 
reserved  for  further  consideration,  or  grants  a  stay  of 
proceedings.  If  there  is  no  doubt  as  to  what  judgment 
is  proper,  the  better  practice  is  to  enter  it  at  once.  The 
judgment  may  as  well  be  set  aside  as  the  verdict.  There- 
fore such  proceedings  as  may  be  appropriate  to  securing 
a  new  trial,  or  any  other  right  of  the  losing  party,  can  be 
prosecuted  as  advantageously  upon  granting  a  stay  of  pro- 
ceedings upon  the  judgment  as  upon  the  verdict.  The 
immediate  entering  of  judgment  authorizes  the  making 
up  of  the  judgment  roll,  and  thus  secures  a  lien  on  the 
judgment  debtor's  real  estate.  To  this  security  he  is  at 
once  justly  entitled.     If  the  court  delays  in  granting  it  to 

1  Cal.  Code  Civ.  Proc,  sec.  1052.  17;   Bond  v.   Citizens'  N.  B.,  65  Md. 

'  Jorgensen  v.  Griffin,  14  Minn.  464.     498, 

»  Thompson   v.  Bickford,   19  Minn.         *  Cal.  Code  Civ.  Proc,  sec.  664. 


49  THE    ENTRY    OP   JUDGMENTS.  §  43 

him,  be  may  during  the  stay  of  proceedings  he  deprived 

^f  the  fruits  of  his  litigation.^ 

"SI  ,...,. 

Q    §  43.     Joint  Parties. — At  common  law,  m  a  joint  action, 

^]^?nvhether  upon  a  joint  or  a  joint  and  several  contract,  or 
Jipon  several  distinct  contracts,  the  general  rule  was,  that 

LL-ihere  could  he  no  judgment  except  for  or  against  all  of 
_-the  defendants.     To  this  rule  the  exceptions  were:    1.  In 

,_.\  cases  where  one  or  more  of  the  defendants,  admitting 
-the  contract,  established  a  discharge  therefrom,  as  by 
'  -bankruptcy;  2.  Where  some  one  of  the  defendants  pleaded 
and  proved  that  he  was  incapable  of  contracting  when 
the  alleged  contract  was  made,  from  some  disability,  as 
infancy.  So  unyielding  was  the  rule,  that  when  one  of 
the  defendants  suffered  a  default  or  confessed  the  action, 
no  judgment  could  be  given  against  him,  if  his  co-defend- 
ant succeeded  in  maintaining  some  defense  affecting  the 
entire  contract.^  Codes  of  procedure,  adopted  in  several 
of  the  states,^  have  abolished  this  rule  by  enacting  that 
judgment  may  be  given  for  or  against  "one  or  more  of 
several  plaintiffs,  and  for  or  against  one  or  more  of  several 
defendants";  and  "that  in  an  action  against  several  de- 
fendants, the  court  may,  in  its  discretion,  render  judgment 
against  one  or  more  of  them,  leaving  the  action  to  proceed 
against  the  others  whenever  a  several  judgment  is  proper," 
Under  these  sections,  of  two  persons  sued  jointly,  one 
may  obtain  a  judgment  against  the  plaintiff,  and  the  other 
be  subjected  to  a  judgment  in  the  plaintiff's  favor.*  And 
in  general,  a  several  judgment  may  be  properly  rendered 
whenever  a  several  action  can  be  sustained.^  In  Califor- 
nia, in  an  action  against  two  or  more,  a  judgment  may  be 
entered  against  the  defendants  in  court,  excluding  those 

1  Hutchinson  v.  Bours,  13  Cal.  50.  '  Cal.  Code  Civ.  Proc,  sees.  578,  579; 

2  Taylor  v.  Beck,  3  RancL  3i«;  Cole     N.  Y.   Code,   l-'04,   1205;  Wis.  Code, 


2  Taylor  v.  Beck,  3  Rand^  ai«;  Cole 
V.  Pennel.  2  dHanV  PJ^  feJr^ffhe  v. 
ReB^19»ffin-atr.'l;  WoodwJu-tU;.  New- 


41;  Ky.  Code,  370. 

^  R,()we    V.    Chandler,    1     Cal.    1G7; 
hdl,'l^k«irtififtEWi*t?^?tf^hanics'     Parker  v.  Jackson,  16  Barb.  33. 


Bank,^*  Pet.  4G;  Baber  ^« iCook,  11  *  Harrington  v.  HiRliam,  15  Barb. 
Leigh,  S^*]Mlfik«i):^&vis7^  Leigh,  524;  Van  Ness  v.  Corkins.  VI  Wis.  186; 
30.  Craudall  v.  Beach,  7  How.  Pr.  27L 


JUDG.  L— 4 


§  44  THE    ENTRY    OF    JUDGMENTS.  ^         50 

not  appearing  and  upon  whom  summons  has  not  heen 
served,  though  the  contract  appears  to  be  jointly  binding 
on  all  of  the  defendants/  The  practice  is  otherwise  in 
New  York;  and  that  sanctioned  by  the  California  cases  is 
spoken  of  in  terms  of  strong,  and  as  it  seems  to  us 
merited,  condemnation.  The  plaintiff  cannot,  under  the 
code,  deprive  the  defendant  of  the  advantage  of  having 
his  joint  co-contractors  united  with  him  in  the  action, 
and  their  property,  as  well  as  his,  made  liable  for  the 
judgment.  Still  less  ought  the  plaintiff  to  be  tolerated 
in  making  all  the  co-contractors  parties,  for  the  purpose 
of  avoiding  a  plea  in  abatement;  and  afterwards,  without 
leave  of  the  court,  or  notice  to  the  defendant  served, 
dropping  the  unserved  defendants  from  the  judgment.^ 
Every  judgment  against  any  joint  defendant  is  irregular 
until  the  other  is  out  of  the  action,  and  the  issues  against 
him  disposed  of.  Until  then  he  has  the  right  to  appear 
at  every  trial  of  the  issues.^  One  of  the  joint  defendants 
sued  on  a  joint  liability  having  answered,  no  judgment 
can  be  taken  against  those  in  default  until  the  issues 
formed  by  the  answer  are  disposed  of.^ 

§  44.  Joint  Contractors.  —  Upon  serving  summons  in  a 
joint  action,  upon  one  or  more  defendants  jointly  indebted 
upon  a  contract,  the  plaintiff  may,  under  the  code,  proceed 
against  the  defendants  served,  unless  the  court  directs 
otherwise;  and  if  he  recovers,  the  judgment  may  be  en- 
tered against  all  the  defendants  shown  to  be  thus  jointly 
indebted,  so  far  only  that  it  may  be  enforced  against  the 
joint  property  of  all,  and  the  separate  property  of  those 
served.®  This  provision  is  not  applicable  to  a  proceeding 
to  foreclose  a  mortgage,  and  obtain  a  decree  for  the  sale 
of  the  premises  mortgaged.  The  fact  that  two  persons 
have  joined  in  the  mortgage  does  not  create  a  presump- 

1  Ingraham  v.  Gildemeester,  2  Cal.         *  Brown    v.    Richardson,    4    Robt. 

88;  Hirschfield  v.  Franklin,  6  Cal.  607.  603. 

«  Niles  V.  Battersliall,  27  How.  Pr.         *  Catlin  v.  Latson,  4  Abb.  Pr.  248. 
381;    Sager    v.    Nichols,    1     Daly,    1;         *  Cal.    Code    Civ.    Prnc,    sec.    413; 

Fowler  v.  Kennedy,  2  Abb.  Pr.  347.  '  N.  Y.  Code,  sees.  1932-1935. 


51       .  THE    ENTRY    OF   JUDGMENTS.  §  45 

tion  that  the  property  therein  described  is  owned  by  them 
jointly.^ 

§  45.  Construction.  —  If  no  date  appeared  upon  a 
judgment,  it  was  presumed,  at  common  law,  to  be  entered 
on  the  first  day  of  the  term  at  which  it  was  rendered. 
The  rule  is  different  in  some  of  the  United  States,  as  in 
Maine,  Massachusetts,  and  New  Hampshire,  where  the 
rendition  is  supposed  to  have  occurred  at  the  last  day  of 
the  term,  unless  the  contrary  appears.^  Including  in  a 
judgment  one  who,  though  named  as  a  party  to  the  suit, 
never  appeared  therein,  and  as  to  whom  the  process  was 
returned  not  found,  has  been  regarded  as  a  mere  clerical 
error,  neither  affecting  the  party  thus  included,  nor  fur- 
nishing any  ground  for  a  reversal  in  the  appellate  court.^ 
On  the  other  hand,  an  appeal  has  been  esteemed  the  ap- 
propriate remedy  for  the  correction  of  a  similar  error.* 
This  is  doubtless  the  better  opinion.  And  in  those  states 
where  the  presumptions  in  favor  of  the  jurisdiction  of 
courts  of  record  are  liberally  indulged  and  applied,  a 
party  to  a  suit  who  considered  the  unauthorized  addition 
of  his  name  in  the  entry  of  the  judgment  as  a  clerical 
error  not  requiring  attention,  and  who  failed  to  correct  it 
in  some  manner,  would  be  in  imminent  peril  of  such  pro- 
ceedings as  should  leave  him  to  regret  his  misapprehen- 
sion and  neglect.  The  entry,  "  This  day  came  the  parties 
by  their  attornej^s,  and  the  plaintiff  enters  a  retraxit"  will 
not  be  construed  as  importing  that  the  plaintiff  did  not 
come  in  person  as  well  as  by  his  attorney.  On  the  other 
hand,  it  will  be  presumed,  in  support  of  the  judgment, 
that  as  the  attorney  was  incompetent  to  enter  a  retraxit, 
the  plaintiff  personally  made  the  entry.^  If  the  entry 
of  a  judgment  is  so  obscure  as  not  to  express  the  final  de- 
termination  with  sufficient  accuracy,  reference  may  be 

'  Bowen  V.  May,  12  Cal.  348.  <  Joyce  v.  O'Toole,  6  Bush,  31;  Ruby 

^  Chase  V.  Gilinan,  15  Me.  64;  Her-  v.  Grace,  2  Duvall,  540. 

ring  V.  Pdlley,  8  Mass.  113;  Goodall  i;.  ^  Thomason  v.    Oiluin,   31   Ala.    108; 

Harris,  20  N.  H.  3(53.  G8  Am.  Doc.  159;  Couk  v.  Lowtiier,  1 

*  Savage  v.  Walshe,  26  Ala.  619.  Ld.  Kayin.  iJ97. 


§  46  THE    ENTRY    OF    JUDGMENTS.  52 

had  to  the  pleadings  and  to  the  entire  record.  If,  with 
the  light  thrown  upon  it  by  them,  its  obscurity  is  dis- 
pelled, and  its  intended  signification  made  apparent,  it 
will  be  upheld  and  carried  into  effect,*  In  case  of  doubt 
regarding  the  signification  of  a  judgment,  or  of  any  part 
thereof,  the  whole  record  may  be  examined  for  the  pur- 
pose of  removing  the  doubt.  One  part  of  the  judgment 
may  be  modified  or  explained  by  another  part;  and  un- 
certainties in  the  judgment  may  become  certain  under  the 
light  cast  upon  them  by  the  pleadings  or  other  parts  of 
the  record.^  Though  the  judgment  purports  to  be  against 
the  defendants,  without  naming  them,  only  one  of  them 
will  be  bound,  if  it  aj^pears  from  the  context  that  only  he 
was  meant,^  or  from  the  return  of  the  service  of  process 
that  only  he  was  brought  within  the  jurisdiction  of  the 
court.*  On  the  other  hand,  though  the  word  "defendant" 
is  written  in  the  body  of  the  judgment,  it  will  be  construed 
as  referring  to  and  including  all  the  defendants  named  in 
the  caption.^ 

§  46.  Form.  —  At  common  law,  the  judgment  or  sen- 
tence of  law  commenced  with  "  it  is  considered  by  the 
court  that  plaintiff  or  defendant  recover,"  etc.  Those 
words  were  considered  peculiarly  appropriate,  as  involv- 
ing and  expressing  the  idea  that  what  was  about  to  be 
ordered  was  not  the  sentence  of  the  judges,  but  of  the  law. 
They  came  to  be  inseparably  associated  in  the  minds  of 
lawyers  with  the  entry  of  a  judgment.  The  chief  stress 
was  laid  upon  the  word  "  considered."  In  Arkansas,  the 
insertion  of  "  ordered  and  resolved "  in  the  place  ordi- 

^  Fowler  v.    Doyle,    16   Iowa,    534;  '  Barnes  r.  Michigan  Air  L.  R'y  Co., 

Finnagan  v.  Manchester,  12  Iowa,  521;  54  Mich.  243. 

Beers  v.  Shannon,  73  N.  Y.  292;  Foot  *  Malaney  v.  Hughes,  50  K  J.  L. 

V.  Glover,  4  Blackf.  313;  Bell  v.  Mas-  546;   Clark   v.    Finnell,    16    B.    Mon. 

sey,    14   La.    Ann.    831;    Peniston  v.  329;    Bovd   v.    Baynham,    5    Humph. 

Somers.  15  La.  Ann.  679.  380;   42  "Am.  I)ec.  43S;   Neal  v.   Sm- 

2  Clay  V.  Hildebrand,  34  Kan.  €94;  gleton,    26   Ark.    491;   Winchester   v. 

Fleenor  v.  Driskill,   97  Ind.  27;  Hof-  Beardin,    10    Humph.    247;    51    Am. 

fertbert   v.    Klinkhardt,    58    III.    450;  Dec.  702. 

Walker  v.  Page,  21  Gratt.  636;  Flack  ^  Myers  v.  Hammons,  6  Baxt.  61. 
V,  Andrews,  86  Ala.  395, 


53  THE    ENTRY    OP    JUDGMENTS.  §   47 

narily  occupied  by  "  considered "  was  held  to  make  the 
entry  a  nullity,'  No  judgment,  according  to  the  view  then 
taken,  had  been  entered.  No  objection  was  made  to  the 
words  as  ambiguous,  or  as  in  any  way  failing  to  designate 
the  "sentence"  or  final  determination  of  the  court.  But 
the  words  used,  it  was  thought,  did  not  import  that  the 
law  had  acted  or  spoken  in  the  matter,  and  the  case  was 
sent  back  to  the  subordinate  court,  to  await  the  time  when 
the  law  should  speak  in  stereotyped  language.  This  view 
was  hypercritical  in  the  extreme.  No  authority  in  sup- 
port of  it  was  cited,  except  the  general  statement  in  Black- 
stone's  Commentaries,  that  the  language  of  a  judgment 
is  not  that  "it  is  resolved  or  decreed,"  but  that  "it  is 
considered."  Some  years  later  the  same  court  came  to 
consider  a  judgment  commencing  with  "it  is  therefore 
ordered,  adjudged,  and  decreed."^  The  former  decision 
was  left  unchanged,  with  an  intimation  that  it  was  prob- 
ably correct.  But  the  words  "ordered,  adjudged,  and 
decreed"  were  said  to  be,  when  united,  equivalent  to 
"  considered,"  and  the  judgment  was  sustained. 

§  47.  Form.  —  Whatever  may  have  been  requisite  for- 
merly, it  is  evident  that  the  sufficiency  of  the  writing 
claimed  to  be  a  judgment  must,  at  least  under  the  code, 
be  tested  by  its  substance  rather  than  by  its  form.  If  it 
corresponds  with  the  definition  of  a  judgment  as  estab- 
lished by  the  code;  if  it  appears  to  have  been  intended 
by  some  competent  tribunal  as  the  determination  of  the 
rights  of  the  parties  to  an  action,  and  shows  in  intelligible 
language  the  relief  granted, — its  claim  to  confidence  will 
not  be  lessened  by  a  want  of  technical  form,  nor  by  the 
absence  of  language  commonly  deemed  especially  appro- 
priate to  formal  judicial  records.*     The  entry  of  a  judg- 

'  Baker  v.  State,  3  Ark.  491.  Pa.  St.   101;  53  Am.  Dec.  573;  Elliott 

^  Ware     v.    Peimington,     15     Ark.  v.  Jordan,  7  Baxt.  37G;  Bank  of  Old 

22G.  Dominion  v.  McVeigh.  .32  Gratt.  5.30; 

3  Church  V.  Grossman,  41  Iowa,  .373;  Clark  v.  Melton,    19  S.  C.  498;  Little 

Lewis  V.  Watrus,  7  Neb.  477;  McNa-  P.  C.  M.  Co.  v.  Little  C.  C.  M.  Co.,  11 

mara  v.  Cabon,  21  Nel).  5S9;  Potter  v.  Col.  223;  7  Am.  St.  Rep.  226-  Terry 

Eaton,  26  Wis,  382;  Kase  v.  Best,  15  v.  Berry,  13  Nev.  514. 


§  48  THE    ENTRY    OF   JUDGMENTS.  54 

ment,  like  every  other  composition,  should  be  comprised 
of  those  words  which  will  express  the  idea  intended  to  be 
conveyed,  with  the  utmost  accuracy.  It  should  also  be  a 
model  of  brevity,  and  should  contain  no  unnecessary 
directions.  The  forms  in  use  at  common  law  answer 
these  requirements  so  well,  that  little  or  nothing  can  be 
gained  by  departing  from  them.  At  law,  it  is  not  neces- 
sary to  state  in  a  judgment  any  of  the  precedent  facts  or 
proceedings  on  which  it  is  based;  ^  and  this  rule  applies 
under  the  codes,  whether  the  relief  granted  is  legal  or 
equitable.^  Wherever  the  code  renders  the  insertion  of 
matters  formerly  required  in  a  judgment  or  decree  un- 
necessary, the  practice  should  conform  to  the  law  now  in 
force,  rather  than  to  that  which  is  abolished.  For  in- 
stance, judgments  foreclosing  mortgages  should  follow  the 
directions  of  the  code  of  procedure  in  the  state  wherein 
the  judgment  is  entered,^  in  preference  to  the  old  forms 
of  chancery  practice.  They  should  contain  only  a  state- 
ment of  the  amount  due  to  the  plaintiff,  a  designation  of 
the  defendants  liable  personally,  and  a  direction  that  the 
premises,  or  so  much  thereof  as  shall  be  necessary,  be 
sold  according  to  law,  and  the  proceeds  applied  to  the 
payment  of  the  judgment  and  costs.  The  copying  into 
the  decree  of  the  directions  of  the  statute  adds  nothing  to 
the  clearness  or  force  of  these  directions.  All  that  part 
providing  for  the  report  of  the  sheriff,  the  confirmation  of 
the  sale,  who  may  become  purchasers,  and  their  rights 
pending  the  time  for  redemption,  the  execution  of  a  con- 
veyance if  no  redemption  be  made,  the  delivery  of  pos- 
session, the  docketing  of  the  judgment  for  any  deficiency 
remaining  after  sale,  accomplishes  no  better  purpose  than 
to  encumber  the  record.* 

§  48.  Use  of  $.  —  In  actions  to  enforce  the  payment  of 
taxes,  the  insertion  of  numerals  without  any  mark  to 
designate  what  they  were  intended   to  represent   has  in 

1  Hamilton  v.  Warrl,  4  Tex.  356.  »  q^\   Code  Civ.  Proc,  sec.  7'26. 

2  Judge  V.  Booge,  47  Mo.  544.  *  Levistoii  v.  Swau,  33  Cal.  480. 


55  THE    ENTRY    OF    JUDGMENTS.  §  48 

at  least  tTVO  states*  been  held  to  leave  the  judgment  fatally- 
defective.  A  similar  decision  appears  in  the  reports  of 
the  supreme  court  of  the  United  States;  but  it  was  made 
in  a  case  where  that  court,  as  stated  in  its  opinion,  con- 
sidered itself  bound  by  the  decisions  of  the  Illinois  courts. 
Nor  do  the  courts  of  Illinois  confine  this  principle  of 
decision  to  judgments  for  taxes.  In  the  case  of  Carpenter 
V.  Sherfy,  71  111.  427,  the  plaintiffs,  in  attempting  to  de- 
raign  title  to  certain  lands  under  an  execution  sale  against 
their  former  owner,  offered  in  evidence  a  judgment  "for 
four  hundred  and  sixty-one  and  ^  damages."  The  court 
said:  "Whether  this  amount  is  cents,  mills,  or  what,  we 
are  left  entirely  to  conjecture.  We  have  no  right  to  in- 
dulge in  presumptions  as  to  what  was  found  by  the  court; 
we  must  take  the  record  as  it  reads.  A  judgment  should 
be  for  a  certain  and  definite  sum  of  money.  This  judg- 
ment is  not  for  any  sum  of  money,  and  can  only  be  re- 
garded as  a  nullity." 2  On  the  other  hand,  the  highest 
court  in  another  state  has  determined  that  a  verdict  and 
judgment  are  presumed  to  be  for  the  things  or  the  denomi- 
nation of  currency  sued  for,  rather  than  for  something 
else,  and  that  a  judgment  for  "  525,"  upon  a  complaint 
claiming  "$525,"  must  be  construed  as  being  for  the  same 
denomination  of  money  named  in  the  complaint,  and 
therefore  not  void  for  uncertainty;'  and  this  view  seems 
to  be  supported  by  the  rule  that  a  judgment  must  be  con- 
strued, in  case  of  obscurity,  with  the  aid  of  the  pleadings 
and  of  the  entire  record.  In  Minnesota,  while  a  judgment 
for  taxes  in  numerals  only,  with  nothing  to  show  what 
they  represent,  is  void  for  uncertainty,  yet  if  there  is  a 
line  or  decimal-mark  separating  the  figures,  those  on  the 
left  of  it  will  be  understood  to  denote  dollars,  and  those 

'  Lane  V.  Bommelman,  21    111.  143;  and  not  for  francs,  or  any  other  forei^ 

Lawrence  v.  Fast,  20  111.  338;  71  Am.  currency:  Erlanger  v.  Avegno,  24  La. 

Dec.  274;  Pittsburg  etc.  R.  R.  Co.  v.  Ann.  77. 

Chicago,  53  III.  80;  Tidd  v.  Rines,  26         ^  To  the  like  effect,  Hopperw.  Lucas, 

Minn.'sOl.     A  judi/meiit  in  the  United  SG  Ind.  43. 
States  should  be  for  dollars  and  cents,         '  Carr  ».  Anderson,  24  Miss.  183. 


§§  48  a-50  THE    ENTRY    OF    JUDGMENTS.  Sft 

on  the  right  cents,  and  the  judgment  will  therefore  be 
treated  as  certain  and  valid.^ 

§  48  a.  A  Judgment,  Expressed  in  Figures  as  to  its 
amount,  these  figures  being  in  connection  with  a  dollar- 
mark,  was  objected  to  on  the  ground  that  the  statute 
required  judicial  records  to  be  written  in  the  English 
language;  but  the  court  was  not  disposed  to  hold  that  the 
defect  was  of  a  character  to  render  the  judgment  abso- 
lutely void  and  of  no  avail  in  a  collateral  proceeding.^ 

§  49.  Filling  Blanks. — A  court  ordered  judgment  to  be 
entered  upon  a  promissory  note,  directing  the  clerk  to 
compute  the  amount  due.  He  made  the  entry,  leaving 
blanks  for  the  amounts.  Fourteen  months  afterwards,  he 
filled  the  blanks  by  inserting  the  proper  sums.  This  it  was 
decided  might  be  such  an  irregularity  as  could  be  reached 
by  a  writ  of  error,  but  it  was  not  available  against  the 
judgment  in  a  collateral  action.^  There  may  be  instances 
in  which  the  leaving  of  unfilled  blanks  is  not  fatal  to  tlie 
judgment;  but  this  must,*  we  apprehend,  be  upon  the 
ground  that  there  is  sufficient  evidence  before  the  court 
in  which  the  judgment  is  called  in  question  to  show  that 
it  was  pronounced  as  a  final  judgment,  and  is  entitled  to 
credit  as  such,  though  not  yet  properly  entered.  So  long 
as  there  are  any  blanks  which  should  be  filled  by  insert- 
ing amounts,  we  think  the  better  view  is,  that  there  is  no 
entry  of  judgment  as  to  an  amount  which  is  not  so  in- 
serted; and  that  the  omission  in  the  judgment-book  can- 
not be  supplied  by  docket  or  other  entries  which  should 
themselves  be  based  upon  the  judgment  entry.' 

§  50.  Sufficiency  of  Entries  —  General  Tests  of.  —  It 
now  remains  in  this  chapter  to  note  some  of  the  decisions 

*  Gutswiller  v.  Crowe,  32  Minn.  ♦  Gray's  Heirs  v.  Coulter,  4  Pa.  St. 
70.  188;    Ulshafer  v.  Stewart,  71   Pa.  St. 

»  FuUerton  v.  Kelliher,  48  Mo.  542.  170. 

See  sec.  50  b.  *  Case  v.  Plato,  54  Iowa,  64;  Noyes 

*  Lind  V.  Adams,  10  Iowa,  398;  77  v.  Newmarch,  1  Allen,  61;  Lea  o. 
Am.  Dec.  123.  Yeates,  40  Ga.  56. 


57  THE    ENTRY    OF    JUDGMENTS.  §  50  a 

in  which  the  sufficiency  of  various  entries  of  judgments 
has  been  questioned  and  determined,  and  the  general 
principles  which  may  be  evolved  therefrom.  The  cases 
are  not  altogether  consistent.  This  arises,  perhaps,  from 
the  fact  that  some  minds  are  deeply  impressed  with  the 
importance  of  matters  of  form,  and  actuated  by  the  dread 
of  encouraging  a  loose  and  unlawyer-like  practice;  while 
others,  paying  little  regard  to  technical  considerations, 
are  inclined  to  recognize  and  enforce  that  which,  though 
confessedly  informal,  is  capable  of  being  readily  under- 
stood and  carried  into  effect.  I  think,  however,  that  from 
the  cases  this  general  statement  may  be  safely  made: 
That  whatever  appears  upon  its  face  to  be  intended  as  the 
entry  of  a  judgment  will  be  regarded  as  sufficiently  for- 
mal if  it  shows,  —  1.  The  relief  granted;  and  2.  That  the 
grant  was  made  by  the  court  in  whose  records  the  entry 
is  written.-^  In  specifying  the  relief  granted,  the  parties 
against  and  to  whom  it  is  given  must,  of  course,  be  suffi- 
ciently identified.  According  to  the  supreme  court  of 
Alabama,  "a  judgment  should  show  the  plaintiff  who  re- 
covers, the  defendant  against  whom  the  recovery  is  liad, 
and  the  special  thing  or  amount  of  money  recovered."^ 

§  50  a.  The  Designation  of  the  Parties  for  and  against 
Whom  the  judgment  is  given  must  in  all  cases  be  suffi- 
cient to  enable  the  clerk  to  know  at  whose  instance  to 
issue  execution,  and  against  whose  property  it  may  be 
properly  enforced.  Hence  a  judgment  for  or  against  the 
captain  and  master  of  the  steamer  Mollie  Hamilton,'^  or 
the  legatees  of  Philip  Joseph,*  or  against  a  defaulting  wit- 
ness by  his  proper  name,  but  not  stating  in  whose  favor,® 
is  insufficient,  if  the  whole  record  or  judgment  roll  does 
not  clearly  disclose  the  parties    for    and    against  whom 

'  Flack  V.  Andrews,  86  Ala.  395.  19  Ala.  198;  hut  a  judgment  in  favor 

*  Spence  v.  Simmons,  16  Ala.  828.         of  the  heirs  of  a  designated  person  lias 
'  Steamer  Molhe  Hamilton  v.  Pas-     heeii  sustained:  Sliaclileford  v.  Fouu- 

chal,  9  Heisk.  203.  tain,    1   T.  B.^Mon.  252;  15  Am.  Dec. 

*  Joseph's  Adin'r  v.  His  Legatees,  5     115;  Parsons*'.  Spencer,  83  Ky.  305. 
Ala.  280;  Turner  v.  Dupree'a  Adm'r,         *  Spence  v.  Simmons,  16  Ala.  828. 


§  50  a  THE    ENTRY    OF    JUDGMENTS.  58 

the  judgment  is  given.     On  the  other  hand,  it  is  equally 
well  settled  that  the  names  of  the  parties  need  not   be 
stated  in  the  body  of  the  judgment.'     The  name  of  the 
firm  may  be  given,  instead  of  the  names  of  its  individual 
members,  or  the  parties  may  be  designated  generally  as 
the  plaintiffs   or  the  defendants,  provided  a  reference  to 
the  caption,  or  to  the  pleadings,  process,  and  proceedings 
in  the  action,  makes  certain  the  names  of  the  parties  thus 
designated;^    and    although    a  judgment  purports  to  be 
against  the  defendants  generally,  its  effect  will  be  limited 
to  one  only,  if  from  the  whole  record  it  is  manifest  that 
he,   and   he   only,  was    intended.'     But    in    Louisiana    a 
judgment  against  certain  named  persons  and  others,  as 
defendants,  does  not  create  a  judicial  mortgage  or  lien 
against  the  lands  of  any  defendant  whose  name  is  not 
stated  in  the  judgment  entry,  although  it  can   be  ascer- 
tained by  examining  the  pleadings.*     As  heretofore  sug- 
gested, every  judgment  may  be  construed  and  aided  by 
the  entire  record.     A  mistake  in  the  name  of  a  party  is 
therefore  rarely  of  serious  consequence.     If  his  name  is 
incorrectly  spelled,  the  principles   of  idem  sonams  may 
render  the  error  immaterial;®  if  his  initials  are  reversed, 
or  otherwise  misstated  in  the  entry,  the  mistake  may  be 
cured  by  reference  to  other  parts  of  the  record.     If  he 
sued  or  was   sued   by  a  wrong  or  fictitious   name,  or  by 
some  designation  which  included  a  part  only  of  his  name, 
and  was   personally  served  with   process,  and,  failing  to 
urge  the  misnomer  in  any  way,  judgment  was  entered  for 
or  against  him,  either  by  his- correct  name®  or  by  such 
mistaken,  fictitious,  or   imperfect  name,  it  is  valid  and 

'  Aldrich  v.  Maitland,  4  Mich.  205;  521;  Holcomb  v.  Tift,  54  Mich.  647; 

Smith  V.  Chenault,  48  Tex.  455;  Goof-  Banning  v.  Sabin,  41  Minn.  477;  post, 

gion  ?).  Gilreath.  32  S.  C.  388.  sec.  155,  and  ante,  sec.  45. 

2  Wilson  V.  Nance.  11  Humph.  189;  *  Ford  v.  Tilden,  7  La.  Ann.  533. 

Little   V.  Birdwell,   27  Tex.  688;  Col-  '  Rowe   v.    Palmer,    29    Kan.     337; 

lins  V.  Hyslop,    11   Ala.   508;  Hays   v.  Mallory  w.  Riggs,  76  Iowa,  748. 

Yarborough,  21  Tex.  487;  McCartney  •*  Kronski  v.   Missouri  Pac.   R'y,  77 

V.    Kittrell,    55   Miss.    253;   Smith   v.  Mo.    362;  McGaughey  v.  Woods,   106 

Chenault,  48  Tex.  455.  lud.  380. 

'  FiQuagaa  v,  Manchester,  12  Iowa, 


59  THE    ENTRY    OF    JUDGMENTS.  §  50  b 

enforceable.^  While  the  parties  to  a  judgment  may,  per- 
haps, be  described  in  terms,  the  meaning  of  which  cannot 
be  ascertained  from  the  record,  as  where  they  are  desig- 
nated as  the  heirs  of  J.  F.,^yet  this  practice  is  not  worthy 
of  encouragement.  There  must  be  no  question  that  the 
judgment  is  for  and  against  some  person  or  persons;  and 
if  against  certain  persons  or  their  representatives  or  as- 
signs, it  is  void  for  uncertainty.^ 

§  50  b.  The  Amount,  in  Case  the  judgment  is  for  money, 
must  be  designated.  It  has  sometimes  been  adjudged 
that  the  amount  cannot  be  expressed  in  figures,  even  when 
preceded  by  a  dollar-mark  to  show  what  the  figures  were 
intended  to  express.^  The  supreme  court  of  Illinois  has 
also  said  "that  amounts  should  not,  in  the  judgment  of 
a  court,  be  entered  in  figures,  but  in  all  cases  by  letters. 
There  is  no  safety  in  using  figures  for  such  purpose.  It 
is  not  to  be  tolerated."*  We  concede  that  the  entry 
in  figures  of  the  amount  of  a  judgment  is  unsafe,  and 
ought  not  to  be  encouraged.  We  nevertheless  believe  that 
judgments  so  entered  would  not  be  adjudged  void  in  the 
majority  of  the  states.^  The  amount  must  in  all  cases 
be  certain.  Thus  judgment  for  a  specified  sum,  subject 
to  a  credit  "  for  one  hogshead  of  tobacco  delivered  in  the 
year  1799,"  without  ascertaining  the  value  of  the  tobacco, 
is  fatally  indefinite  and  uncertain.'  The  final  judgment 
ought  to  designate  the  precise  amount  recovered,  and  not 

^  Vogel  v.  Brown  Township,  112  Ind.  incorrect     publication    of     plaintiff's 

299;  2  Am.   St.  Rep.   187;  Newcomb  name:  Ex  parte  Cheatham,  6  Ark.  531; 

V.  Peck,  17  Vt.  302;  44  Am.  Dec.  340;  44  Am.  Dec.  .525. 

Root  V.    Fellowes,    6  Gush.    29;  First  ^  Shackleford  v.    Fountain,   1    T.  B. 

Nat.  Bank  v.  Jaggers,  31  Md.  38;  100  Mon.  252;  15  Am.  Dec.   115;  Parsons 

Am.    Dec.   53;  Petterson  v.  Litta,   74  v.  Spencer,  83  Ky.  305. 

Iowa,  223;  Lindsay  v.  Delano,  78  Iowa,  ^  Miller    v.    Peters,    25     Ohio    St. 

350;  Hoffield  v.  Newton  Board  of  Ed.,  270. 

33  Kan.  644.     Where,  however,  sum-  ^  Smith  v.  Miller,  8  N.  J,  L.  175;  14 

mons  is  served  by  publication  against  Am.  Dec.  418. 

defendant  by  her  maiden  name,  and  ^  Linder  v.  Monroe,  33  111.  390. 

judgment  entered  in  that  name,  it  does  ®  See  sec.  48  a. 

not  affect  her:  Freeman  v.   Hawkins,  '  Early  v.  Moore,  4  Munf.  262.     See 

77  Tex.   498;    19  Am.    St.   Rep.   769;  also  Berry  v,  Anderson,  2  How.  (Miss.) 

and  perhaps  a  like  result  follows  the  652. 


§  50  C  THE    ENTRY    OF   JUDGMENTS.  60 

leave  it  to  be  determined  by  a  subsequent  computation.* 
But  if  there  is  a  verdict  for  a  definite   sum,  judgment 

thereon    for    the  "  said    sum    of dollars,  assessed    as 

aforesaid,"  is  sufficiently  explicit.^  It  is  not  fatal  to  a 
judgment  that  a  computation  is  necessary  to  ascertain  tlie 
amount  of  the  recovery  if  it  furnishes  the  data  for  such 
computation,^  as  where  it  is  for  a  sum  designated,  with 
lawful  interest  from  a  specified  date.* 

§  50  c.  The  Property  which  is  the  subject  of  a  judg- 
ment or  decree  must  also  be  described  with  sufficient 
certainty  to  leave  its  identity  free  from  doubt;^  but  the 
bill  or  complaint  may  be  referred  to  in  the  judgment, 
for  the  purposes  of  description.®  The  judgment  may  be 
either  for. the  possession  or  the  sale  of  real  or  personal 
property,  and  while  it  is  being  executed,  or  afterwards,  a 
question  may  arise  whether  its  descriptive  words  are  suf- 
ficient to  support  a  sale  made  by  virtue  of  its  authoriza- 
tion, or  to  justify  the  execution  of  a  writ  of  possession 
based  upon  it.  So  far  as  any  general  rule  can  be  formu- 
lated upon  this  subject,  we  apprehend  it  is  this:  That  a 
judgment  may  be  aided  by  the  pleadings  and  other  parts 
of  the  record,  and  if  the  description  obtainable  from  it 
and  them  would  be  sufficient  if  found  in  a  conveyance  to 
divest  the  title  of  the  grantor,  it  will  be  sufficient  to  sus- 
tain sales  made  or  possession  taken  under  the  judgment,^ 
and  otherwise,  that  the  judgment   and  all  proceedings 

1  Nichols  V.    Stewart,    21    111.    lOS;  Minogue,    29    Ark.    637;    Tribble    v. 

Smith  V.  Trimble,  27  111.   152;  Ander-  Davis,  3  J.  J.  Marsh.  633;  McManus 

son  V.  Reed,  11  Iowa,  177;  Landerman  v.  Stevens,  10  La.  Ann.  177;  Shepherd 

V.    McKinson,    5   J.    J.    Marsh.    234;  v.  Pepper,  133  U.  S.  626. 

Mudd  V.  RoL'ers,  10  La.  Ann.  648.  «  Jones  v.   Belt,  2  Gill,   106;  Foster 

*  Ellis  V.  Dunn,  3  Ala.  632;  Dyer  v.  v.  Bowman,  55  Iowa,  237. 

Hatch,  1  Ark.  339.  '  Coleman   v.    Reel,    75   Iowa,   304; 

*  Guild  V.  Hall,  91  111.  223;  Dins-  Posey  u.  Green,  78  Ky.  162;  Miller  w. 
more  v.  Austill,  Minor,  89;  Ladnier  v.  Indianapolis,  123  Ind.  796;  Wright  v. 
Ladnier,  64  Miss.  368;  Stokes  v.  San-  Ware,  50  Ala.  549;  Bloom  ?'.  Biirdick, 
born,  45  N.  H.  274.  1  Hill,  130;  37  Am.  Dec.  299;  McWil- 

*  Wilbur  V.  Abbot,  58  N.  H.  272;  liams  v.  Walthall,  65  Ga.  109;  De 
Morrisons.  Smith,  130  111.  304.  Sepulveda  v.   Baugh,  74   Cal.  4GS;   5 

°  Gayle  v.   Singleton,    1    Stew.   566;     Am.  St.  Rep.  455. 
Hurt  V.  Moore,  19  Tex.  269;  Jones  v. 


61  THE    ENTRY    OF    JUDGMENTS.        '  §  50  d 

under  it  must  be  treated  as  void/  In  California,  after 
great  deliberation,  the  conclusion  was  reached  and  an- 
nounced, that  the  description  of  land  in  a  judgment  must 
be  perfect  in  itself,  and  cannot  be  aided  by  a  reference 
in  the  judgment  to  any  paper  or  record  not  constituting 
a  part  of  the  judgment  roll  in  the  case  in  which  the 
judgment  was  rendered;  and  judgments  were  treated  as 
void  which  directed  the  sale  of  land,  and  referred  for 
purposes  of  description  to  certain  deeds,  the  dates  and 
places  of  record  of  which  were  specified,  or  to  a  final 
judgment  in  partition  making  an  allotment  of  the  land 
in  controversy.^  These  decisions  were  ultimately  over- 
ruled, as  they  deserved  to  be.^  If  the  description  referred 
to  is  itself  uncertain,  it  cannot  aid  the  judgment,  as  where 
a  writ  is  directed  to  issue  to  restore  to  plaintiff  possession 
of  the  lands,  or  so  much  thereof  as  are  not  farther  south 
than  the  boundary  line  described  in  the  verdict,  and  the 
verdict  merely  designates  such  line  as  being  seven  and 
nine  feet  south  of  a  certain  hedge.* 

§  50  d.  A  Judgment  of  Conviction  may  be  said  to 
consist  of  two  parts,  to  wit:  1.  The  facts  judicially  ascer- 
tained, together  with  the  manner  of  ascertaining  them, 
entered  of  record;  2.  The  recorded  declaration  of  the 
court  pronouncing  the  legal  consequences  of  the  facts 
thus  judicially  ascertained.  Both  of  these  parts  are 
equally  necessary  in  the  entry  of  a  judgment  of  convic- 
tion. "In  the  first  part  it  is  usual  and  proper  to  set 
forth  in  the  minutes  of  the  court  the  title  and  number  of 
the  case,  the  calling  of  the  case  for  trial,  the  appearance 
of  the  parties,  the  plea  of  the  defendant,  and  if  'not 
guilty'  the  selection,  impaneling,  and   swearing  of  the 

'  Hearne    v.    Erhard,    33    Tex.    60;  laid  out  in  town  lots  by  James  Roach, 

Keith  V.  Hayden,  26  Minn.  212.  and    have   been   sold    and    conveyed 

*  Crosby  v.  Dowd,  61  Cal.  557;  Hill  prior  to  the  execution  of  the  mortgage 

V.  Ware,  66  Cal.  l.SO.  herein,"  has  been  adjudged  fatally  de- 

s  De   Sepulveda   v.  Baugh,  74   Cal.  fective:    Bowen   v.   Wickersliam,    124 

468;  5  Am.  St.  Rep.  455.     But  a  de-  Ind.  404;  19  Am.  St.  Rep.  i06. 

Bcription  of  a  tract  of  land,  "except  *  Robertson     v.     Draue,     100     Mo. 

Buch  portions  as  have  heretofore  been  273. 


§§  50  e,  51     THE  ENTRY  OF  JUDGMENTS.  62 

jury,  the  submission  of  the  evidence,  the  charge  of  the 
court,  the  return  of  the  verdict,  and  the  finding  of 
the  jury.  In  the  second  part  it  should  be  declared  upon 
the  record,  in  connection  with  the  verdict,  in  the  event  of 
a  conviction,  that  it  is  considered  by  the  court  that  the 
defendant  is  adjudged  to  be  guilty  of  the  offense  as  found 
by  the  jury,  and  that  the  defendant  be  punished  as  it  has 
been  determined  by  the  jury, — in  cases  where  they  have 
the  right  to  determine  the  amount,  or  the  duration  and 
place  of  punishment,  —  setting  forth  particularly  the 
amount,  or  the  duration  and  place  of  ^punishment,  in 
accordance  with  the  nature  and  terms  of  the  punishment 
prescribed  in  the  verdict."  ^ 

§  50  e.  The  Signature  of  the  Judge  to  the  judgment  or 
the  record  in  which  the  judgments  are  entered  is  some- 
times required  by  statute;  and  in  some  states  its  omission 
has  been  held  fatal,^  either  as  making  the  judgment  void, 
or  as  presumptive  evidence  that  the  alleged  judgment  had 
never  received  judicial  sanction.  More  frequently,  how- 
ever, statutory''  requirements  of  this  character  have  been 
adjudged  to  be  directory  merely,  and  the  absence  of  the 
judge's  signature  to  in  no  way  impair  the  effect  of  the 
judgment,'^  whether  it  is  legal  or  equitable  in  character. 

§  51.  Sufficient  Entries,  Examples  of.  —  "I  give  judg- 
ment." These  words,  if  the  parties  are  made  certain  and 
the  amount  ascertained  by  other  parts  of  the  judgment, 
are  as  effective  as:  "It  is  considered  that  plaintiff  recover," 
etc.*     "Whereupon  the  court  orders  that  plaintiff  pay  the 

1  Mayfield  v.  State.  40  Tex.  290;  man,  56  Iowa,  443;  Clapp  v.  Hawley, 
Roberts  v.  State,  3  Tex.  App.  47.  See  97  N.  Y  610;  Keener  v.  Good^on,  89 
ante,  sec.  21  a.  N.  C.  273;  Gunn  v.  Tackett,  67  Ga. 

2  Saloy  V.  Collins,  30  La.  Ann.  63;  725;  French  v.  Pease,  10  Kan.  51; 
State  V.  Jumel,  30  La.  Ann.  421;  Ray-  Fontaine  v.  Hudson,  93  Mo.  62;  3  Am. 
mond  V.  Smith,  1  Met.  (Ky.)  65;  71  St.  Rep.  515;  Rollins  v.  Henry,  78 
Am.  Dec.  458;  Hatch  v.  Arnault,  3  N.  C.  342;  Cannon  v.  Hemphill,  7  Tex. 
La.  Ann.  48-';  Galbraith  v.  Sidener.  184;  Cathcart  v.  Peck,  11  Minn.  45; 
28  Ind.  142;  Ferguson  v.  Chastant,  35  Childs  v.  McChesney,  20  Iowa,  431;  89 
La.  Ann.  4S5.  Am.  Dec.  545. 

*  Crim  V.  Kessing.  89  Cal.  478;  Baker  *  Deadrick  v.  Harrington,  Hemp. 
V.  Baker,  51  Wis.  538;  Traer  v.  Whit-     50. 


63  THE    ENTB,Y    OF    JUDGMENTS.  §  51 

costs  of  suit,  and  that  execution  issue  therefor,"  in  a  record 
showing  the  trial  by  a  jury  and  a  verdict  for  the  defend- 
ants, though  not  in  technical  language,  is  sufficient  to 
constitute  a  valid  judgment.*  ''We  should  not  hesitate 
to  enforce  a  judgment  because  'decreed'  or  'resolved' 
was  used  instead  of  'considered,'"^  "No  judgment  will 
be  reversed  for  the  use  of  inappropriate  or  untechnical 
words."  ^  "  No  particular  form  is  required  in  the  pro- 
ceedings of  the  court,  to  render  their  order  a  judgment. 
It  is  sufficient  if  it  is  final,  and  the  part}-  may  be  injured."* 
"A  judgment,  in  addition  to  the  ordinary  circumstances 
of  time  and  place,  sbould  exhibit  the  parties,  the  matters 
in  dispute,  and  the  result,  but  the  form  is  immaterial."^ 
The  following  have  been  determined  to  be  sufficient 
entries  of  judgments:  "I  hereby  render  judgment  against 
plaintiff  for  costs  herein.  Judgment  rendered  against 
plaintiff  for  costs."'  "After  hearing  the  proof,  it  is  the 
opinion  of  the  court  that  the  defendant,  Anton  Gabon,  is 
indebted  to  the  plaintiff  in  the  sum  of  $100.  It  is  there- 
fore considered  and  adjudged  by  me  that  Anton  Gabon 
pay  to  the  plaintiff,  McNamara  and  Duncan,  the  sum  of 
$100,  with  interest  from  December  20,  1883,  and  costs  of 
suit,  taxed  at  $3.15."^  "Whereupon  the  court  orders  that 
plaintiff  pay  the  costs  of  suit,  and  that  execution  issue 
therefor."  ^  "  Therefore  it  is  considered  and  adjudged  by 
the  court  that  the  plaintiff  in  this  action  have  judgment 
against  the  defendants  for  the  sum  of  $226.45  for  his  said 
damages  on  his  said  action,  and  the  sum  of  $35.55  for  his 
costs  and  disbursements,  and  that  he  have  execution 
therefor."^  "Now,  on  motion  of  plaintiffs'  attorneys  it 
is  adjudged  that  plaintiffs  have  judgment  herein  for  the 
sum  of  $476,  and  one  cent  damages,  and  for  their  costs, 

*  Huntington  v.  Blakeney,  1  Wash,         '  Ordinary  v.  McClure,  1  Bail.  7. 
129.  8  Marsh  v.  Snyder,  14  Nel),  8. 

'•'Taylor    v.     Runyan,     3     Clarke,  '  McNamara  i>.  Cal)on,  21  Neb.  5S9; 

474.  Black  V.  Gallon,  24  Nel).  248. 

^  Minkhart  v.  Hankler,  19  111.  47.  "*  Huntington  v.  Blakeney,  1  Wash. 

*  AVells  V.  Hotjan,  Breese,  3J7;  John-  111. 

son  V.  GiLett,  52  111.  300.  »  Potter  v.  Eaton,  26  Wis.  382. 


§  52  THE    ENTRY    OF   JUDGMENTS.  64 

$126.34,  amounting  in  all  to  $602.35,"  preceded  by  a  mar- 
ginal entry  of  the  names  of  the  parties,  and  of  the  trial 
before  a  jury  and  of  their  verdict.^  "There  being  no 
issuable  plea  filed  in  this  case  on  oath,  judgment  is  ren- 
dered by  the  court  for  two  hundred  and  ninety-seven 
dollars  and  ninety-nine  c^nts  principal,  with  the  sum  of 
ninety  dollars  and  thirty  cents  for  interest  to  date,"  the 
court  being  of  the  opinion  that  the  faiUire  to  state  iu 
whose  favor  the  judgment  was  was  immaterial,  because  it 
appeared  to  be  entered  on  plaintiff's  declaration,  on  the 
ground  that  no  sufficient  answer  had  been  made  thereto.^ 
"  There  being  no  issuable  defense  filed,  ordered  that  the 
plaintiffs  have  leave  to  enter  up  judgment  against  the  de- 
fendants."^ Judgment  by  consent  in  favor  of  the  plain- 
tiff for  ten  thousand  seven  hundred  and  sixty  dollars,  the 
debt  in  the  declaration  mentioned,  with  interest  thereon 
from  the  first  day  of  January,  1866,  till  paid,  and  costs. 
Execution  to  be  stayed  for  ninety  days."  *  "  Therefore 
plaintiff  for  costs,"  accompanied  by  the  statement  of  the 
justice  who  entered  it,  that  it  appeared  to  him  that  he  did 
not  have  jurisdiction  of  the  subject-matter.* 

§  52.  Insufficient  Entries,  Examples  of. — The  entry 
must  not  only  indicate  what  adjudication  took  place,  but 
should  also  appear  to  have  been  intended  as  the  entry  of 
judgment,  and  not  as  a  mere  memorandum  by  the  aid  of 
which  the  formal  record  w^as  to  be  constructed.*  "June 
14,  1838,  judgment  sec.  reg.  for  want  of  plea.  January  9, 
1839,  sum  ascertained  at  $155.07.  Interest  from  June  14, 
1838."  This  writing,  being  offered  as  evidence  of  a  judg- 
ment, was  rejected  on  the  grounds  that  there  was  nothing 
to  show  by  whom  judgment  was  rendered,  or  against 
whom,  nor  for  what  amount,  if  in  fact  any  judgment  had 

1  Flack  V.  Andrews,  86  Ala.  395.        ■  *  Ease  v.  Best,   15  Pa.  St.  101;  53 

»  A.lams  V.  Walker,  59  Ga.  506.  Am.  Dec.  573. 

*  Tift  V.  Keaton,  78  Ga.  235.  «  Smith  v.  Steele,  81  Mo.  455;  Tom- 

*  Bank  of  Old  Dominion  v.  McVeigh,  beckbee  Bank  r.  GoJbold,  3  Stew.  240; 
32  Gratt.  630.  20  Am.  Dec.  80. 


65  THE    ENTRY    OF    JUDGMENTS.  §  52 

ever  been  given  by  any  court  against  any  person.*  It  is 
obvious  that  in  some  of  the  cases  the  entry  offered  in 
evidence  has  been  disregarded,  not  from  or  on  account  of 
the  absence  of  the  essential  elements  of  a  judgment  record, 
but  because  the  court  thought  that  such  entry  had  been 
originally  designed  as  nothing  but  a  brief  direction  to  the 
clerk,  or  as  a  certificate  made  by  the  clerk  of  some  judg- 
ment already  formally  put  upon  the  record.  Thus  "judg- 
ment rendered  for  plaintiff  in  the  above-entitled  suit  at 
the  above-named  term  by  the  court  for  the  sum  of  seventy- 
eight  and  ^  dollars  damages,  and  his  costs  of  suit,  against 
said  defendant  on  motion,"  was  determined  not  to  be  the 
entry  of  a  judgment.  These  words  certainly  show  the 
action  of  the  court,  the  nature  and  extent  of  the  relief 
granted,  and  the  parties  against  and  to  whom  it  was 
awarded.  So  far  they  are  appropriate  to  the  record  of  a 
judgment;  but  they  do  not  appear  to  be  the  direction  of 
the  court  itself.  On  the  contrary,  they  seem  rather  to  be 
the  certificate  of  the  clerk  of  certain  events  transpiring 
in  court,  as  he  recollects  them,  or  as  he  understands  them 
from  such  information  as  he  may  possess,  than  the  origi- 
nal record  of  the  court  in  relation  to  those  events.^  The 
words  "judgment  on  verdict  for  $3,000  and  costs,"  though 
found  among  the  records,  and  showing,  as  they  certainly 
do,  that  a  final  determination  had  been  made,  are  not  the 
record  of  a  judgment.  They  neither  show  what  authority 
directs  nor  how  the  direction  is  to  be  carried  into  effect. 
They  are  apparently  intended  as  a  mere  memorandum 
for  the  information  of  the  clerk.®  The  following  entry 
was  also  rejected  on  a  plea  of  nul  tiel  record,  as  implying 
at  most  only  a  minute  of  proceedings,  and  not  the  solemn 
act  of  the  court  determining  the  rights  of  the  parties: 
"The  following  jury  was  sworn  and  impaneled  [here 
follow  twelve  names],  who  find  all  the  issues  in  favor  of 
the  plaintiff,  and  assess  his  damages  at  five  hundred  and 

1  Taylor     v.     Runyan,     3     Clarke,         *  Wheeler  v.  Scott,  3  Wis.  362. 
474.  »  Martin  v.  Earnhardt,  39  111.  9. 

JUDG.  L— 6 


§  53  THE    ENTRY    OP   JUDGMENTS.  66 

eighty-five  dollars.  Judgment  at  September  term,  1844, 
$585;  the  costs  arising  in  this  suit  due  to  the  county,  to 
witnesses  and  officers  of  court,  is  $134.92,"^  The  follow- 
ing have  been  declared  to  be  insufficient  as  entries  of 
judgments:  "December  6, 1841.  Reuben  Emory  and  Har- 
riett Emory  v.  Reuben  Abbott,  On  hearing  counsel  in 
this  cause,  on  motion  of  George  Woodruff,  plaintiffs'  at- 
torney, judgment  for  plaintiffs  on  demurrer,  and  that  it 
be  referred  to  the  clerk  to  compute  the  amount  due  on 
the  bond  mentioned  in  the  plaintiffs'  declaration,  and  the 
clerk  having  computed  the  amount  due  on  said  bond  at 
eight  hundred  dollars,  the  penalty  thereof  to  be  discharged 
on  the  payment  of  six  hundred  and  twenty-four  dollars 
and  eleven  cents,  and  costs  to  be  taxed."  ^  A  record  show- 
ing the  issuing  and  return  of  a  writ,  and  a  docket  entry 
that  "the  court  grant  judgment";  that  proceedings  had 
been  taken  before  a  sheriff's  jury,  by  which  the  amount 
of  plaintiff's  damages  has  been  assessed,  and  that  another 
docket  entry  was  thereupon  made  that  "the  court  grant 
judgment  on  the  finding  of  the  inquest.'"  "The  court, 
after  due  consideration,  sustained  said  demurrer,  and  ren- 
dered judgment  for  the  defendant,  and  against  the  plain- 
tiff for  the  costs  of  the  action,  taxed  at  $11.20."*  "Verdict 
for  plaintiff;  let  writ  issue."®  "Judgment  rendered  upon 
the  verdict  of  the  jury."^ 

§  53.  Justices'  Courts.  —  Though  the  nature  of  a  final 
adjudication  in  a  justice's  court  is  in  no  respect  different 
from  that  of  a  court  of  record,  several  causes  uniting  have 
produced  rules  of  construction  by  which  the  records  of 
the  former  court  are  scrutinized  with  less  severity  than 
those  of  the  latter.  In  the  first  place,  the  higher  courts 
being  presided  over  by  men  of  learning,  and  supplied 
with    officers  whose   sole   duties   consist   in    keeping  the 

1  Hinson  v.  Wall,  20  Ala.  298.  *  Miller  v.  B.  &  M.  K  R,  R.  Co.,  7 

*  Whitwell  V.  Emory,  3  Mich.  84;  59  Neb.  227. 

Am.  Dec.  220.  »  Stark  v.  Billings,  15  Fla.  318. 

3  Rape  V.  Heaton,  9  Wis.  328;   76  « Meyer    v.     Teutopolis,     131     111. 

Am.  Dec.  269.  152. 


67  THE    ENTRY    OP    JUDGMENTS.  §  53  a 

various  papers  filed  in  court  in  proper  place  and  condi- 
tion, and  in  reducing  the  various  orders  and  directions  of 
the  judges  to  writing  upon  records  required  by  law  for 
that  purpose,  a  loose  memorandum  would  naturally  be 
viewed  with  distrust  when  offered  as  the  final  result  of 
all  this  learning  and  formality.  Its  form  at  once  dis- 
tinguishes it  as  an  intruder,  and  shows  its  humble  origin 
and  design.  But  as  justices  of  the  peace,  except  in  cities, 
rarely  know  anything  of  the  technical  learning  of  the 
common  or  even  of  the  statute  law,  to  insist  upon  their 
keeping  their  records  with  that  accuracy  and  formality 
required  in  courts  of  record  would  end  in  the  complete 
overthrow  of  most  of  their  proceedings.  Besides,  as  jus- 
tices of  the  peace  have  no  clerks  assigned  them  by  law, 
there  is  little  ground  for  the  presumption  that  even  loose 
and  disjointed  memoranda,  found  upon  their  minutes  or 
dockets,  were  designed  as  rough  outlines  for  another  hand 
to  round  into  more  perfect  form. 

§  53  a.  Failure  of  Justice  to  Enter  Judgment.  —  In  New 
York,  justices  of  the  peace  are  required  to  enter  their 
judgments  in  their  dockets  within  four  days  after  the  ren- 
dition thereof.  But,  under  the  general  rule  that  the  entry 
of  the  judgment  is  a  ministerial  act,  the  failure  of  a  justice 
to  comply  with  this  part  of  the  law  within  the  time  re- 
quired has,  by  repeated  decisions,  been  held  to  leave  the 
judgment  in  full  force.'  The  judge  who  delivered  the 
opinion  of  the  court  of  appeals  in  a  recent  case  said 
the  failure  of  the  justice  to  obey  the  law  is  deserving  of 

I  Hall  V.  Tuttle,  6  Hill,  38;  40  Am.  the  presence  of  the  by-standers  and 
Dec.  382;  Walrod  v.  Shuler,  2  N.  Y.  entering  it  on  the  docket:  Smith  v. 
134;  Martin  v.  Pifer,  96  Ind.  245.  In  Bahr,  62  Wis.  244.  In  Iowa,  on  the 
Wisconsin,  however,  where  the  statute  other  hand,  "  forthwith,"  as  used  in 
requires  a  justice,  on  receiving  a  ver-  statute  concerning  entry  of  judgments, 
diet,  to  render  judgment  forthwith,  his  is  interpreted  as  signifying  witiiin  a 
failure  to  so  render  it  deprives  him  of  reasonable  time,  and  a  justice  is  not  re- 
jurisdiction,  and  his  judgment  rendered  quired  tolay  aside  all  other  affairs,  that 
fourteen  hours  afterwards  is  void:  he  may  act  at  once;  though  he  delays 
Hull  V.  Mallory,  56  V\'is.  355;  Sibley  twenty-four  hours,  he  may  bo  consid- 
V.  Howard,  3  Denio,  72;  45  Am.  Dec.  ered  to  have  acted  forthwith:  Davis  v. 
448.  The  statute  is  not  satisfied  by  Simma,  14  Iowa,  154;  81  Am.  Dec.  462; 
merely  reading  the  verdict   aloud  in  Burchett  v.  Casaday,  18  Iowa,  344. 


§  53  a  THE    ENTRY    OF    JUDGMENTS.  68 

censure,  but  added:  "  I  am  unable  to  find  any  principle  of 
law  requiring  us  to  hold  that  the  omission  to  docket  must 
inflict  a  penalty  upon  the  plaintiff,  more  justly  due  to  the 
magistrate."  ^  In  Maine,  a  justice  of  the  peace,  after  being 
out  of  office  for  three  or  four  years,  completed  the  record 
of  a  case  tried  during  his  official  term,  by  writing  up  a 
judgment  in  his  judgment-book.  Of  this  transaction, 
Mellen,  C.  J.,  said:  "A  magistrate  does  not  act  judicially 
in  making  up  and  completing  his  record.  In  doing  this, 
he  performs  himself  what  this  court  does  through  the 
agency  of  its  clerk.  It  is  a  mere  ministerial  act.  The 
judgment  is  regular."  ^  In  a  case  before  a  justice  of 
the  peace  in  California,  the  jury  rendered  a  verdict  in 
favor  of  the  plaintiff  "for  one  hundred  and  seventy-five 
dollars,  in  gold  coin."  This  verdict  was  entered  in  the 
justice's  docket,  but  no  judgment  was  in  fact  entered  in 
pursuance  thereof.  Subsequently,  on  api^lication  of  the 
plaintiff,  the  justice  issued  an  execution,  reciting  that  a 
judgment  had  been  rendered  by  him  for  that  much  money, 
and  for  costs  of  suit.  Under  this  execution,  a  sale  was 
made  by  the  sheriff,  at  which  the  plaintiff  became  the  pur- 
chaser. Relying  upon  title  derived  from  this  sale,  the 
plaintiff  brought  an  action  of  ejectment  to  recover  the 
realty  purchased  by  him;  but  the  defendant  insisted  that 
the  sale  was  void,  on  account  of  the  failure  to  enter  judg- 
ment upon  the  verdict.  In  considering  this  portion  of 
the  defense,  the  court  said:  "The  justice,  upon  receiving 
the  verdict,  was  required  by  statute  to  'immediately  ren- 
der judgment  accordingly.'  The  formal  entry  of  the  judg- 
ment was  therefore  a  mere  clerical  duty  imposed  upon 
him  by  the  statute,  and  the  performance  of  which  he  had 
no  discretion  to  decline.  He  might  have  been  compelled 
to  make  the  proper  entry  in  his  docket  by  judicial  pro- 
ceedings instituted  against  him  for  that  purpose  by  the 
plaintiff;  and  it  may  be  conceded  that  to  issue  an  execu- 
tion before  judgment  entered   in   form  upon  the  verdict 

1  Fish  V.  Emerson,  44  N.  Y.  377.  ^  Matthews  v.  Houghton,  11  Me.  377. 


69  THE    ENTRY    OP   JUDGMENTS.  §  54,  55 

would  be  a  bad  practice,  and  that  a  timely  motion  by  the 
defendant  to  set  it  aside  for  that  reason  should  be  sup- 
ported. That  would  be  so,  however,  not  because  such  an 
execution  would  be  void,  but  because  it  would  be  irregular 
merely.  And  a  failure  to  make  the  objection  would,  of 
course,  amount  to  a  waiver  of  the  irregularity.  As  was 
said  by  the  supreme  court  of  New  York:^  'We  are  to 
overlook  matters  of  form,  and  to  regard  proceedings  be- 
fore justices  of  the  peace  according  to  the  merits.  Accord- 
ingly, in  that  case,  a  plea  of  former  judgment  in  favor  of 
the  defendant  was  held  to  be  supported  by  proof  of  a  ver- 
dict in  his  favor,  upon  which  the  justice  of  the  peace 
ought  to  have  rendered  judgment,  but  had  omitted  to  do 
so.' "2 

§  54.  Reference  to  Another  Case.  —  The  entry  of  a 
judgment,  even  in  a  justice's  court,  must  either  be  perfect* 
in  itself,  or  be  capable  of  being  made  perfect  by  reference 
to  other  parts  of  the  docket,  or  to  the  papers  on  file  in  the 
action.  An  entry  in  which  the  identity  of  the  parties  can- 
not be  ascertained  without  referring  to  the  entry  of  some 
other  case  is  fatally  uncertain.  The  rule  of  construction 
permitting  all  the  records  and  papers  in  a  case  to  throw 
light  upon  an  obscure  entry  is  sufficiently  liberal,  and 
ought  not  to  be  extended  so  as  to  include  the  records  or 
pleadings  in  another  suit.^ 

§  55.  On  an  Award.  —  An  action  being  tried  by  refer- 
ees, they  reported  "  that  the  defendant  is  indebted  to  the 
plaintiff  on  the  above  complaint  in  the  sum  of  four  dol- 
lars, and  nine  dollars  and  six  cents  costs  of  suit,"  The 
justice  of  the  peace  thereupon  wrote:  "Judgment  rendered 
December  26, 1840.  M.  Tindal."  A  marginal  note  stated 
the  amount  of  judgment  and  costs  to  be  the    same  as 

1  Felter  v.  Mulliner,  2  Johns.  181.  '  McClellan   v.    Cornwell,    2    Cold. 

2  Lynch  V.  Kelly,  41  Cal.  232.  See,  298;  Tombeckbee  Bank  v.  Strong's 
to  same  effect,  Gaines  v.  Betts,  2  Doug.  Ex'rs,  1  Stew.  &  P.  187;  21  Am.  Dec. 
(Mich.)  98;  Hess  v.  Beckman,  11  Johns.  657. 

457;  Overall  v.  Pero,  7  Mich.  315. 


§  55  THE    ENTRY    OF    JUDGMENTS.  VO 

named  in  the  report.  This  was  held  to  constitute  a  suffi- 
cient entry,  because  the  inference  was  unavoidable  that 
the  judgment  was  intended  to  be  in  conformity  with  the 
award,  this  inference  being  strengthened  by  the  marginal 
note,  to  which  resort  could  be  properly  had  to  explain  and 
uphold  the  judgment.^ 

Note.  —  The  following  entries  of  judgments  have  been  considered  sufficient 

in  the  higher  courts:  "Peacham,  16,  1828.     Judgment  rendered  by  the 

court  for  plaintiflf,  at  $5.25.  R.  Blanchard,  Justice  of  the  Peace,"  accompanied 
by  marginal  entry  of  "Costs  allowed,  $5.25":  See  Story  v.  Kimball,  6  Vt. 
541.  ^' H.  C.  Anderson  v.  M.  L.  Elcan,  Judgment  granted  v.  defendant,  M. 
L.  Elcan,  for  $433.90.  May  17,  1857.  C.  J.  Spencer,  J.  P.":  Ander.ion  v. 
Kimhrough,  5  Cold.  260.  In  Baratt  v.  Garragan,  16  Iowa,  44,  the  transcript 
showed  the  proceedings  up  to  and  including  trial,  after  which  was  written: 

"Judgment  for  plaintiff  against  the  defendant  for ,  October  24,  1856:  — 

"Damages $84  00 

' '  Justice's  fee $0  SO 

"Const 25 

"Two  witnesses 25 

1  30 

$85  30" 
Tills  was  pronounced  a  perfect  judgment.     It  exhibited  the  time,  the  parties, 
and  the  result  so  clearly  as  to  be  unmistakable.     This  case  was  subsequently 
approved  in   Church  v.  Crossman,  41  Iowa,  373.     In   New  York,  the  words 
"  Fish  V.  Emerson.     Testimony  submitted  June  30,  1863. 

"Judgment  for  plaintiflf;  damages $124  80 

3  92 

128  72" 

.—  were  held  to  be  sufficient  as  the  entry  of  a  judgment:  44  N.  Y.  376. 

On  the  other  hand,  a  judgment  in  this  form:  "The  plaintiff  filed  his  demand 
for  thirty  dollars;  the  defendant  not  appearing,  the  plaintiff  proves  his  demand, 
and  I  gave  judgment  for  the  same,"  —  was  reversed  for  not  being  such  a  judg- 
ment as  the  law  requires:  Polhemus  v.  Perkins,  15  N.  J.  L.  435.  "Be  it  re- 
membered that  at  Barnard,  April  23,  1836,  Asaph  Wilder,  of  Woodstock,  -was 
attached  to  answer  James  Wright,  of  Barnard,  on  former  judgment  of  Lyman 
Stewart,  Esq.,  in  a  case,  James  Wright  v.  Loren  Gay.  Now,  the  plaintiff  says 
that  the  judgment  of  Lyman  Stewart  was  collected  by  E.  Parker,  deputy 
sheriff,  and  converted  same  to  his  own  use,  and  never  accounted  for  same,  nor 
any  part  thereof.  The  said  Wright  recovered  judgment  by  default  for  the 
sum  of  $15. 15  damages,  and  $1 .99  costs  of  suit.  Winslow  W.  Ralph,  Justice 
of  the  Peace,"  —  upon  a  plea  of  nul  tiel  record  was  considered  as  containing  no 
legal  evidence  of  a  judgment,  on  the  ground  that  it  showed  no  court  holden, 
no  appearance  by  either  party,  no  adjudication  by  the  justice,  no  allusion  to 
any  writ  or  process  or   declaration,  and  uo  award  of  execution:    Wriglit  v. 

1  Elliott  V.  Morgan,  3  Harr.  (Del.)  316. 


71  THE    ENTKY    OF    JUDGMENTS.  §  55 

Fletcher,  12  Vt.  431.  A  jury  returned  a  verdict:  "We,  the  jury,  find  in  favor 
of  the  plaintiff,  and  assess  his  damages  at  in  the  sum  of  $4,493";  and  the  record 
showed  the  entry  "whereupon  the  court  enters  judgment  on  the  verdict."  It 
was  held  that  this  entry  had  no  element  of  a  judgment  other  than  the  mere 
recognition  of  the  verdict.  "The  ideo  considemtum  est  is  wanting":  Faulk  v. 
Kcllums,  54  111.  189.  "Gave  judgment  in  favor  of  plaintiff  for  $171  and  costs" 
is  a  sufficient  entry  of  a  justice's  judgment:  Hutchinson  v.  Fulghum,  4  Heisk. 
550. 


§  56  ENTRY    OF    JUDGMENTS    NUNC    PRO    TUNC.  72 

CHAPTER  III. 

OF  THE  ENTRY  OF  JUDGMENTS  AND  DECREES  NUNC  PRO  TUNC. 

Part  I.  —  WHERE  NO  JUDGMENT  WAS  RENDERED. 
§  56.     Policy  and  antiquity  of  the  practice. 

§  57.     Cases  where  delay  is  occasioned  by  non-action  of  the  court. 
§  58.     Where  party  is  tied  up  by  some  motion. 

§  59.     Entry  to  be  made  only  when  case  was  ready  for  final  judgment. 
§  60.     Not  to  be  made,  where  the  delay  is  not  by  the  court. 

Part  II. —JUDGMENTS  RENDERED,   BUT  NOT  ENTERED. 

§  61.  Cases  where  judgment  was  rendered,  but  not  entered. 

§  62.  Evidence  to  base  entry  upon. 

§  63.  Parol  evidence  as  basis  of. 

§  64.  Practice  on  application  for. 

§  65.  Withdrawal  of  jurisdiction. 

§  66.  Saving  of  rights  of  third  persona. 

§  67.  Effect  of. 

§  68.  Must  be  confined  to  clerical  omissions. 

Part  I. —JUDGMENTS  NOT  RENDERED. 

§  56.     Policy   and   Antiquity  of   the   Practice.  —  The 

policy  of  entering  judgments  and  decrees  nunc  pro  tunc 
is  agreeable  to  the  maxim,  Actus  curie  neminem  gravabit: 
an  act  of  the  court  shall  prejudice  no  one.  This  maxim, 
says  Mr.  Broom,  "  is  founded  in  justice  and  good  sense; 
and  affords  a  safe  and  certain  guide  to  the  administration 
of  the  law."^  As  an  expression  of  the  principle  upon 
which  judgments  are  given  effect,  as  of  sometime  prior  to 
their  actual  entry,  the  maxim,  in  the  interests  of  accuracy, 
requires  to  be  changed  to  "  a  delay  of  the  court  shall  pre- 
judice no  one."  The  power  of  making  an  entry  nunc  pro 
tunc  seems  to  have  been  possessed  and  exercised  by  courts 
of  law  and  of  equity  from  the  earliest  times.^  The  period 
in  which  this  power  could  be  successfully  invoked  was 
never  limited;^  a  decree  in  one  instance  being  entered 

1  Broom's  Legal  Maxims,  115.  Iowa,  41;  Davis  v.  Hooper,  4  Stew.  & 

2  Mayor  of  Norwick  ?;.  Berry,  4  Burr.     P.  231;   24   Am.    Dec.    751;   Long   v. 
2277;  Hodges  v.  Templer,  6  Mod.  191;     Long,  85  N.  C.  415. 

Evans  v.  Rees,  12  Ad.  &  E.  167;  Mays  ^  Reily  v.  Burton,  71  Ind.  118;  Ful- 
V.  Hassell,  4  Stew.  &  P.  222;  24  Am.  ler  v.  Stebbins,  49  Iowa,  376.  The 
Dec.   750;    Shephard  v.   Brenton,    20    power  may  be  exercised  in  crimmal 


73       ENTRY  OF  JUDGMENTS  NUNC  PRO  TUNC.      §  57 

after  the  lapse  of  twenty-three  years.^  The  practice  was 
confined  to  those  cases  in  which  some  hardship  would  be 
visited  upon  one  of  the  parties  without  any  fault  of  his^ 
unless  he  was  relieved  from  it  by  allowing  his  judgment 
to  be  entered  at  some  period  when  he  was  legally  entitled 
thereto,  and  of  such  a  date  as  was  necessary  to  avoid  the 
embarrassment  in  which  he  would  otherwise  be  involved. 
The  power  to  enter  judgments,  decrees,  and  orders  nunc 
pro  tunc  is  inherent  in  the  courts,  both  at  law  and  in 
equity,  and  is  not  dependent  for  its  existence  upon 
any  statute.^  Whether  it  is  inherent  in  the  courts 
in  the  sense  that  they  cannot  be  deprived  of  it  by  the 
legislature  is,  so  far  as  we  are  aware,  an  undetermined 
question;  but  doubtless  every  statute  purporting  to  confer 
this  power  or  to  provide  the  mode  in  which  it  may  be 
exercised  will  be  regarded  as  cumulative  merely,  and  not 
as  withholding  the  power,  in  cases  where  it  existed  by  the 
common  law,  nor  as  limiting  its  exercise  to  the  time  and 
mode  designated  in  the  statute.^ 

§57.  Delay  of  the  Court.  —  The  cases  naturally  re- 
solved themselves  into  two  classes.  The  first  comprised  a 
large  number  of  actions  in  which  no  judgments  had  ever 
been  rendered,  but  which  were,  so  far  as  the  suitors  could 
make  them,  in  condition  for  the  rendition  of  final  judg- 
ments. The  second  was  composed  of  cases,  comparatively 
few  in  number,  in  which  judgments,  though  formally 
pronounced,  had  from  accident  or  from  negligence  of  the 
clerks  never  been  put  upon  the  records.  The  first  class 
contained  not  only  the  greater  number  of  cases,  but  each 
of  the  cases  within  it  was,  in  all  probability,  more  deserv- 
ing of  relief  than  any  of  the  cases  of  the  second  class.    No 

prosecutions  as  well  as  in  civil  cases:  (U.  C.)  152;  Reid  v.  Morton,   119  111. 

Ex  parte  Beard,  41  Tex.  2.34;  Smith  v.  118. 

State,  1  Tex.  App.  408,  516;  Ex  parte  *  Mitchell  ».  Overman,  103  U.  S.  62; 

Jones,  61  Ala.  399.  Reid  v.  Morton,  119  III.  118;  Burnham 

'  Daniell's  Chancery  Practice,  1219;  v.  Bailing,  16  N.  J.  Eq.  310. 

Lawrence  v.  Richmond,   Jacob  &  W.  *  Chissom  v.   Barbour,    100  Ind.    1; 

241.   See  also  Downs  v.  Lewis,  11  Vcs.  Fuller  v,  Stebbius,  49  Iowa,  370. 
601;  Drummond  v.  Anderson,  3  Grant 


§  57     ENTRY  OF  JUDGMENTS  NUNC  PRO  TUNC.       74 

case  could  be  ranked  among  the  first  class  in  which  the 
delay  to  render  or  enter  judgment  was  imputable  to  any 
negligence  or  even  misapprehension  of  the  parties.  The 
rule  that  no  judgment  would  be  ordered  entered  nunc  pro 
tunc  excejDt  for  delay  of  the  court  admitted  of  no  excep- 
tions in  theory,  and  was  so  constantly  observed  in  prac- 
tice that  one  of  the  judges  remarked  that  he  had  never 
known  of  its  violation  during  his  experience,  extending 
at  bar  and  bench  over  a  period  of  forty  years.^  The  neces- 
sity for  entering  judgments  as  of  some  day  prior  to  their 
rendition  arose  chiefly,  if  not  exclusively,  in  those  cases 
where,  after  the  trial  and  submission  of  a  cause,  one  of 
the  parties  died,  as  no  judgment  could  properly  be  entered 
bearing  date  subsequent  to  his  death.  As  the  suitor  who 
brought  his  action  on  to  trial,  and  caused  it  to  be  tried 
and  submitted,  had  manifestly  been  guilty  of  no  laches, 
the  court  protected  him  from  any  prejudice  he  might 
suffer  by  the  death  of  his  adversary  after  such  submission; 
and  instead  of  permitting  the  action  to  abate,  directed  the 
judgment  to  be  given  effect,  if  necessary,  as  far  back  as 
the  day  of  the  submission.  Thus  the  time  taken  by  the 
court  for  deliberation  was,  as  far  as  possible,  prevented 
from  working  injustice  to  the  party  ^vho  should  in  the 
end  prevail  in  his  suit.^  In  the  appellate  courts,  if  a 
cause  is  argued  and  submitted  either  upon  the  merits  or 
upon  motion  to  dismiss  the  appeal,  and  thereafter  one  of 
the  parties  dies,  the  final  judgment  of  reversal  or  afiirm- 

1  Heathcote  v.  Wing,  11  Ex.  855;  Paine,  483;  Perry  v.  Wilson,  7  Mass. 
Freeman  v.  Trannah,  12  Com.  B.  406;  393;  Springfield  v.  Worcester,  2  Cush. 
Fishmongers'  Co.  v.  Robertson,  3  Com.  52;  Astley  v.  Reynolds,  2  Strange, 
B.  970;  Lawrence  v.  Hodgson,  1  917;  Neil  v.  McMillan,  27  U.  C.  Q.  B. 
Younge  &  J.  368.  258;  Day  v.  Cameron,   15  U.  C.  Q.  B. 

2  Jarrett's  Estate,  42  Ohio  St.  199;  175;  Abington  v.  Lipscomb,  11  L.  J. 
Mitchell  V.  Schoonover,  16  Or.  211;  8  Q.  B.,  N.  S.,  15;  Miles  v.  Wil- 
Am.  St.  Rep.  282;  Jennings  v.  Ashley,  liams,  16  L.  J.  Q.  B.,  N.  S.,  47;  Miles 
5  Pike,  128;  Pool  v.  Loomis,  5  Pike,  v.  Bough,  15  L.  J.  Q.  B.,  N.  S.,  30; 
110;  Jones  v.  Le  Davids,  2  Fowler's  Turner  v.  L.  &  S.  W.  R'y  Co.,  43  L.  J. 
Ex.  Pr.  169;  Campbell  v.  Mesier,  4  Ch.  430;  Wilson  v.  Myers,  4  Hawks, 
Johns.  Ch.  344;  8  Am.  Dec.  570;  73;  19  Am.  Dec.  510;  McLean  v.  State, 
Davies  V.  Davies,  9  Ves.  Jr.  461;  Wood  8  Heisk.  22;  Key  v.  Goodwin,  4  Moore 
f.  Keyes,  6  Paige,   478;  Hess  v.  Cole,  &  S.  620. 

23  N.  J.  L.   116;  Griswold  v.  Hill,  1 


75     ENTRY  OF  JUDGMENTS  NUNC  PRO  TUNC.   §§  58,  59 

ance  or  dismissing  the  appeal  will  be  entered  as  of  some 
day  prior  to  the  death  of  the  party  but  subsequent  to  the 
argument.* 

§  58.  Delay  Occasioned  by  Motions.—  Besides  the  de- 
lay occasioned  by  the  deliberations  of  the  judges  after  the 
argument  of  a  cause,  the  prevailing  party  was  likely  to  be 
tied  up  by  various  motions  whose  pendency  deprived  him, 
for  a  time,  of  the  fruits  of  his  litigation.  The  considera- 
tion of  these  subjected  him  to  the  same  peri]  and  entitled 
him  to  the  same  relief  as  though  he  were  endangered  by 
being  compelled  to  await  the  decision  of  the  judges  after 
the  argument  on  the  trial.^  Hence  if  during  the  pen- 
dency of  a  motion  in  arrest  of  judgment,^  or  for  a  new 
trial,  "whether  after  verdict  or  nonsuit,  on  demurrer  or 
writ  of  error,''  or  to  reduce  the  amount  of  an  award,^  or 
if  pending  the  decisions  of  questions  of  law  which  could 
not  be  heard  on  account  of  press  of  business  in  court,"  ^ 
one  of  the  parties  dies,  the  other  may  have  judgment 
entered  as  of  some  term  during  the  lifetime  of  his  oppo- 
nent. 

§  59.  Made  only  when  Cause  was  Ready  for  Final 
Judgment. —  But  in  every  case,  to  entitle  the  applicant  to 
have  his  judgment  entered  nunc  pro  tunc  on  account  of 
the  death  of  one  of  the  parties,  the  action  must  at  the 
time  of  such  death  have  been  ready  for  the  rendition  of 

^Richardson  v.    Green,    130  U.    S.  *  Spalding  v.    Congdon,    18   Wend. 

104;   Powe  v.  MoLeod,   76  Ala.   418;  543;  Ryghtmyret;.  Durham,  12  Wend. 

Snow  v.  Carpenter,  54  Vt.  17;  Citizens'  245;  Currier  v.  Lowell,   16   Pick.  170; 

Bank  v.  Brooks,  23  Fed.  Rep.  21.  Tooker  v.  Duke  of   Beaufort,    1  Burr, 

2  Mitchells.  Schoonover,  16  Or.  211;  147;    Terry  i;.   Briggs,   12   Cush.    319; 

8  Am.  St.  Rep.  282;  Skidaway  S.  R.  R.  Dial  v.  Ilolter,  6  Oliio  St.  228;  Den  v. 

Co.  V.  Brooks,  77  Ga.  136;  Goddard  v.  Tomlin,  18  N.  J.  L.  14;  35  Am.  Dec. 

Bolster,  6  Me.  427;  20  Am.  Dec.  320;  525. 

Tapley   v.   Goodsell,    122    Mass.    176;  ^  Bridges  v.  Smyth,  8  Bing.  29. 

Long  w.  Stafford,  103  N.  Y.  275;  Board  «  Miles   v.    Williams,    9   Q.    B.    47; 

V.  Hall,  79  N.  C.  606;  Witten  V.  Kobe-  Tapley    v.    Martin,     116    Mass.    275; 

son,  31  Mo.  App.  525;  Paige's  Estate,  Blaisdell    v.    Harris,    52    N.    H.    191; 

50  Cal.  40.  Seymour  v.  Greenwood,  30   L.  J.  Ex. 

^Tidd's   Practice,  8th   ed.,  p.  966;  189;  Moor  v.  Roberts,  3  Com.  B.,  N.S., 

Griffith  V.  Ogle,  1  Binn.  172;  Brown  v.  844;  4  Jur.,  N.  S.,  241;  27  L.  J.  Com.  P. 

Wheeler,  18  Conn.  199.  161. 


§  60      ENTRY  OF  JUDGMENTS  NUNC  PRO  TUNC.       76 

the  final  judgment.^  It  is  not  sufficient  that  an  interlocu- 
tory judgment  had  been  pronounced,  and  proceedings 
were  pending  in  pursuance  of  a  writ  of  inquiry,^  nor  that 
judgment  had  been  given  against  the  defendant  on  de- 
murrer with  leave  to  amend.  In  each  of  these  cases  no 
judgment  could  properly  have  been  entered  when  the 
death  occurred,  and  that  event  ought  not  to  give  the  sur- 
vivor any  greater  advantage  than  he  previously  possessed. 
"It  [entering  judgments  nunc  "pro  tunc]  should  be  con- 
fined to  cases  where  the  judgment  is  final,  as  where  a 
verdict  has  been  rendered  or  a  nonsuit  ordered,  which  is 
confirmed  by  the  court  on  motion  for  a  new  trial,  or 
where  a  judgment  is  rendered  on  a  special  verdict,  de- 
murrer to  evidence,  or  a  w^it  of  error.  But  according  to 
the  present  practice  judgment  on  demurrer  is  seldom 
final."  3 

§  60.  Delay,  not  of  Court.  —  If,  however,  the  delay  is 
in  no  wise  attributable  to  the  court,  nor  to  the  tying  up 
of  the  case  during  the  time  required  to  dispose  of  such 
motions  as  we  have  mentioned,  no  doubts  nor  difficulties, 
nor  mistakes  of  law,  in  which  one  of  the  parties  has  been 
involved,  will  entitle  him  to  this  relief.*  If,  for  instance, 
the  counsel  in  a  case  are  unable  to  decide  at  once  what 
form  of  judgment  or  decree  is  best,  and  while  discussing 
this  matter  among  themselves  the  plaintiff  or  defendant 
dies,^  or  if  a  party,  upon  applying  to  have  judgment 
signed,  does  not  press  the  matter  because  one  of  the 
officers  suggests  a  doubt  as  to  whether  it  is  not  a  legal 
holiday,  and  the  defendant  dies  the  same  day,^  neither  of 
these  cases  warrants  the  interposition  of  the  court.  The 
court  is  in  no  way  blamable  for  the  doubts  or  misappre- 

^  O'Riordan  v.  Walsh,  8  I.  R.  C.  L.  Kissam   v.   Hamilton,    20    How.    Pr. 

158;    Hall   v.  Brown,  59   N.   H.   198;  375. 

Hazards.  Durant,  14  R.  I.  25;  Perkins  *  Tuomy  v.  Dunn,  77  N.  Y.  515. 

V.    Dunlavy,    61    Tex.    241.       Contra,  *  Fishmongers'  Co.  v.  Robertson,  3 

Webber  v.  Webber,  83  N.  C.  280.  Corn.  B.  970;  16  L.  J.  Com.  P.,  N.  S., 

2  Jennings  v.  Ashley,  5  Pike,  12S.  118;  4  Dowl.  6o&. 

»  North   V.   Pepper,  20  Wend.  677;  «  Wilkes  v.  Perkes,  5  Man.  &  G.  376. 


77       ENTRY  OF  JUDGMENTS  NUNC  PRO  TUNC.      §  61 

hensions  of  the  parties  nor  of  their  advisers,  and  it  will 
not  change  its  course  of  proceeding  to  relieve  them  from 
the  consequence  of  any  mistake  of  law  or  of  fact.  That 
there  is  a  surviving  defendant  is  not  a  sufficient  objection 
to  the  entry  of  judgment  nunc  pro  tunc,  if  the  other  facts 
authorize  it.'  The  rule  that  judgment  will  not  be  entered 
nunc  pro  tunc  will,  unless  to  relieve  a  party  from  injury 
attributable  to  a  delay  of  the  court,  be  enforced  even 
where  a  delay  has  been  occasioned  by  the  party  against 
whom  the  entry  is  sought  to  be  made.  Thus  where  judg- 
ment would  have  been  entered  within  two  terms  after 
the  entry  of  the  verdict  but  for  the  fact  that  the  plain- 
tiff's executor  was  delayed  in  proving  a  will  on  account 
of  a  caveat  entered  by  the  defendant  against  the  probate 
being  granted,  the  court,  though  conceding  the  case  to  be 
one  of  extreme  hardship,  denied  the  application  to  enter 
judgment  nunc  pro  tunc,  one  of  the  judges  saying:  "I 
think  we  ought  not  to  be  induced,  by  our  desire  to  do 
substantial  justice  in  the  individual  case,  to  depart  from 
those  general  principles  which  are  the  only  safe  guides 
for  the  administration  of  the  law."  ^ 

Part  II.  —  CASES  OF  JUDGMENTS  RENDERED,  BUT  NOT  ENTERED. 

§  61.  In  Relation  to  the  Second  Class  of  Cases,  some 
degree  of  negligence  is  always  chargeable  against  the  par- 
ties for  not  attending  to  having  the  proper  entries  made. 
Frequently,  however,  both  parties  suppose  the  judgment 
to  be  entered  as  well  as  rendered.  Upon  that  supposition, 
process  is  issued  and  enforced,  or  other  proceedings  taken 
to  carry  out  the  judgment,  and  new  rights  and  interests 
are  based  upon  it.  To  protect  these,  it  is  occasionally 
necessary  to  have  the  judgment  entered  as  of  some  time 
prior  to  their  inception.  The  entry  of  judgment  nunc  pro 
tunc  is  always  proper  when  a  judgment  has  been  ordered 
by  the  court,  but  the  clerk  has  failed  or  neglected  to  copy 

1  Harrison  v.  Heathorn,  6  Scott  N.         "  Freeman  v.  Trannah,  12  Com.  B, 
R.  797;  1  Dowl.  &  L.  529.  406;  21  L.  J.  Com.  P.,  N.  S.,  214. 


§  61      ENTRY  OF  JUDGMENTS  NUNC  PRO  TUNC.       78 

it  into  the  record.^     Therefore,  if  a  judgment  of  divorce 
has  been  rendered  which  the  clerk  of  the  court  has  ne- 
glected to  enter  until  after  the  death  of  one  of  the  parties, 
he  may  be  directed  to  enter  it  nunc  pro  tunc  as  of  some 
day  in  the  lifetime  of  the  decedent,^  on  application  of  one 
who  was  not  a  party  to  the  cause,  and,  when  entered,  it 
becomes  operative  as  of  the  day  of  its  rendition,  and  if 
collaterally  drawn  in  question  it  is  conclusive  as  to  all 
matters  of  evidence  necessary  to  its  validity.'     A  sale  of 
the  lands  of  a  minor  having  been  made  and  reported  to 
the  court,  and  the  judge  having  indorsed  on  the  report 
his  approval  of  the  sale,  an  order  was  entered  sixteen 
years  afterwards  approving  the  sale  as  of  the  day  when 
the  approval  was  indorsed  on  the  report."     It  would  be 
idle  to  attempt  the  enumeration  of  the  different  classes  of 
judgments  which  may  be  entered  nunc  pro  tunc,  for  the 
rules  of  law  upon  this  subject  are  no  less  applicable  to  one 
class  of  cases  than  to  another.     Nor  is  the  power  to  make 
nunc  pro  tunc  entries  confined  to  judgments  and  decrees. 
It  is  a  power  which  courts  have  and  liberally  exercise,  to 
make  their  records  speak  the  truth,  and  if  a  clerk  has 
omitted  to  make  an  entry  of  any  proceeding,  whether  be- 
fore or  after  the  final  judgment  or  decree,  the  court  may 
require  him  to  supply  his  omission  nunc  pro  tunc.^     A 
judgment  thus  entered  need  not  be  one  which  the  court 
or  judge  formally  pronounced,  if  it  was  one  which  the  law 
required  the  clerk  to  enter.     Hence  a  clerk's  neglect  to 
enter,  at  the  proper  time,  a  judgment  by  confession  or  of 
voluntary  dismissal  may  be  set  right  by  a  nunc  pro  tunc 
entry."     It  has  been  said  that  a  court  would  not  order 
judgment  entered  nunc  pro  tunc  to  enable  a  party  to  avoid 

iHagler    v.    Mercer,    6    Fla.    721;         *  Estate   of   Cook,  77  Cal.  220;   11 

Howell  V.  Morlan,  78  111.  162:  Frank-  Am.  St.  Rep.  267. 
lin  V.  Merida,  50  Cal.  289;  Fulton  v.         ^  In  re  Cook's  Estate,  83  Oal.  415. 
Fulton,  8  Abb.  K  C.  210;  Hansbrough         *  Reid  v.  Morton,  119  111.  118. 
?;  Fudge,  80  Mo.  307;  BelkintJ.  Rhodes,         ^  State   v.  Cox,  33   La.   Ann.    10o6; 

76  Mo.  643;  Forbes  v.  Navra,  63  Miss.  State  v.  Moran,  24  Neb.  103;  Security 

1;  Whorley  v.  M.  &  C.  R.   R.  Co.,  72  Co.  v.  Arbuckle,  123  Tud.  ol8.  ^ 
Ala.  -20;  Aydelotte  v.  Brittain,  29  Kan.         ®  Mountain  v.  Rowland,  30  G-a,  929; 

98;  Whittaker  v.  Gee,  63  Tex.  435.  Davis  v.  Barker,  1  Ga.  559. 


79  ENTRY    OF    JUDGMENTS    NUNC    PRO    TUNC.  §  61 

its  effect  by  pleading  against  it  his  discharge  in  bank- 
ruptcy,  and  the  reason  suggested  was,  that  the  court 
would  not  thus  aid  him  "  to  release  himself  from  a  valid 
claim  against  him."  ^  There  was,  however,  in  the  case  in 
which  this  suggestion  was  made,  no  reason  for  entering 
the  judgment  as  requested.  The  action  was  still  pending 
when  the  discharge  was  granted,  and  it  was  not  then 
known  that  any  judgment  would  ever  be  entered  against 
the  bankrupt.  He  had  not  been  prejudiced  by  any  delay 
of  the  court,  nor  by  any  omission  of  its  clerk,  and  was, 
therefore,  not  entitled  to  the  special  relief  which  he 
sought.  Had  the  judgment  been  rendered  against  him 
before  his  discharge  was  granted,  we  apprehend  that  the 
court  would  have  ordered  it  entered  as  of  its  proper  date, 
though  his  object  in  procuring  such  entry  was  to  bring 
the  judgment  within  the  operation  of  the  discharge. 
Surely,  one  should  not  be  deprived  of  a  legal  right  granted 
him  by  the  law  and  the  courts,  through  the  legal  wrong  of 
a  clerk  in  omitting  to  discharge  the  duties  imposed  on 
him  by  law. 

The  questions  of  the  greatest  importance  and  difficulty 
in  relation  to  the  entry  of  judgments,  orders,  and  decrees 
nunc  pro  tunc  are.  How  shall  it  be  shown, — 1.  That  a  judg- 
ment was  rendered  as  alleged?  and  2.  If  so  rendered, 
what  were  the  nature  and  extent  of  the  relief  given  by  it? 
During  the  term  the  proceedings  are  under  control  of 
the  court,  and  no  embarrassing  questions  can  arise  in 
relation  to  the  exercise  of  its  correctory  powers.  But 
after  the  term,  upon  what  evidence  can  a  motion  for 
the  entry  of  judgment  as  of  some  prior  term  be  based? 
Upon  this  subject  the  decisions  are  not  numerous.  In 
most  cases  where  the  propriety  of  the  entries  came  in 
question,  the  facts  are  stated  in  the  reports  without  any 
intimation  as  to  how  those  facts  were  made  apparent  to 
the  court.  Probably  the  weight  of  authority  sustains 
the  rule  that  only  by  some  entry  or  memorandum  on  or 

1  Hall  V.  Brown,  59  N.  H.  198. 


§  61      ENTRY  OF  JUDGMENTS  NUNC  PRO  TUNC.       80 

among  the  records  of  the  court  can  the  rendition  of 
a  judgment  be  proved.^  It  is  not  necessary  that  the 
record  state  in  express  terms  that  a  judgment  was  en- 
tered. If  the  facts  shown  by  it  "  are  such  as  to  reason- 
ably and  fairly  carry  conviction  that  a  judgment  was  in 
fact  rendered,  this  is  sufficient."'  While  in  some  of  the 
cases  in  which  judgments  have  been  ordered  entered  nunc 
pro  tunc  it  appeared  that  the  judges  rendering  them  had 
prepared  written  decisions,  or  had  signed  formal  judg- 
ments or  decrees,  these  facts  were  not  material,  except  in 
so  far  as  the  decisions  gave  "the  clerk  surer  means  of 
correctly  entering  what  had  been  adjudged."  If  the  fact 
of  the  rendition  of  the  judgment  sufficieutl}'-  appears  from 
the  minutes  of  the  court,  it  may  be  ordered  entered  nu7ic 
pro  tunc,  though  no  written  decision  was  filed  and  no 
formal  judgment  was  signed  by  the  judge,  or  prepared  by 
the  attorneys.^  An  entry  must  somewhere  be  found  and 
produced  in  court,  apparently  made  by  the  authority  of 
the  court.  It  must  be  in  some  book  or  record  required 
to  be  kept  by  law  in  that  court.  Under  this  rule,  a  decree 
filed  among  the  papers  in  a  cause,  signed  by  the  judge, 
when  the  law  did  not  require  decrees  to  be  reduced  to 
writing  and  filed,  and  when  no  part  of  the  records  showed 
the  rendition  of  any  decree,  was  considered  insufficient  to 
Avarrant  its  entry  nunc  pro  tunc  as  the  formal  decree  of 
the  court.*  The  motion  docket  being  a  book  required  by 
law  to  be  kept,  the  memoranda  there  made  are  competent 
evidence  to  show  the  rendition  of  a  judgment.*  So  is  the 
opinion  of  a  judge  in  writing,  filed  among  the  records  in 
a  case,  if  the  law  required  it  to  be  written  and  filed.^ 

1  Metcalf  v.  Metcalf,  19  Ala.  319;  54  85  Tenn.  377;  Shackelford  v.  Levy,  63 

Am.  Dec.  190;  Hegeler  v.  Henckell,  27  Miss.  125;  Camoron  v.  Thurmond,  56 

Cal.  491;   Fletcher  v.  Coombs,  58  Mo.  Tex.    22.     Contra,   Bobo   v.   State,  40 

430;  Draughan  v.  Tombeckee  Bank,  1  Ark.  224. 

Stew.  66;    18  Am.  Dec.  38;   Swain  v.  =*  Wittenv.  Robison,  31  Mo.  App.  525. 

Naglee,  19  Cal.  127;  Hyde  v.  Curling,  »  Estate   of   Cook,  77    Cal.  220;    11 

10  "Mo.  359;    Witten  v.   Robison,  31  Am.  St.  Rep.  267. 

Mo.  App.  525;  Gibson  v.  Choteau,  45  *  Hudson   v.  Hudson,  20   Ala.  364; 

Mo.  171;  100  Am.  Dec.  366;  Herringz;.  56  Am.  Dec.  200. 

Cherry,    75   Ala.    376;     Robertson   v.  *  Yonge  v.  Broxson,  23  Ala.  684. 

Pharr,  56  Ga.  245;  Cadwell  v.  DuUag-  «  State  v.  Mayor  of  Mobile,  24  Ala. 

ban,  74  Iowa,  239;  Carter  v.  McBroom,  701. 


81       ENTRY  OF  JUDGMENTS  NUNC  PRO  TUNC.      §  62 

§  62.  Evidence  to  Base  Entry  on. —  But  assuming  the 
evidence  to  be  competent  for  the  purpose  for  which  it  is 
offered,  and  to  show  the  rendition  of  some  judgment,  the 
question  then  to  be  determined  is,  Does  it  siiow  with  suffi- 
cient clearness  what  that  judgment  was?  and  if  not,  may 
its  obscurity  be  removed  by  the  use  of  other  means  of 
proof?  The  entry  by  a  judge  in  his  docket,  "Jury  and 
verdict  for  plaintiff,  and  fifteen  per  cent  damages,"  taken 
in  connection  with  the  papers  on  file,  was  adjudged  to 
afford  no  sufiicient  data  for  judgment  nunc  -pro  tunc,  be- 
cause the  verdict  may  have  been  for  less  than  the  amount 
claimed  by  the  plaintiff.^  The  memoranda  on  the  trial 
docket  of  the  orphans'  court,  as  follows:  "Joshua  Morris, 
heir  of  A.  Metcalf,  use  of  J.  W.  Williamson,  v.  Adams. 
Judgment  on  demurrer.  Leave  to  amend  granted  on 
payment  of  costs  of  the  term.  Costs  paid  by  S.  T.  Roach, 
attorney.  Ordered  to  appoint  auditors,  Benjamin  Wald- 
ing,  Mathew  Johnson,  and  Daniel  Johnson.  Ordered  that 
they  report  instanter.  Auditors'  report  in  the  hands  of 
administrator,  $469.82," — were  held  not  to  sustain  a  nunc 
pro  tunc  decree,  on  account  of  their  not  showing  the  pres- 
entation of  any  accounts,  the  amounts  received  or  paid 
out,  the  name  of  the  administrator,  nor  whether  the  set- 
tlement was  partial  or  final.'^  The  words  on  motion 
docket,  "Oct.  Term,  1841,  —  Nonsuit,"  with  lines  drawn 
across  the  names  of  the  plaintiff  and  defendant,  according 
to  the  custom  when  a  case  was  stricken  from  the  docket, 
all  done,  confessedly,  by  the  presiding  judge  at  the  time, 
authorize  the  entry  of  a  judgment  nunc  pro  tunc.^  In 
Missouri,  an  entry  nunc  pro  tunc  cannot  be  sustained,  if 
the  court  must,  as  to  some  essential  fact,  have  acted  either 
■upon  the  recollection  of  the  judge  or  upon  evidence  not 
found  in  the  records  or  quasi  records  in  the  cause;*  but 
an  order  granting  a  motion  may  be  entered  nunc  pro  tunc, 

1  Dickens  v.  Bush,  23  Ala.  849.  ♦  Blize  v.  Castilo,  8  Mo.  App.  290; 

*  Metcalf  V.  Metcalf,  19  Ala.  319;  54  Belkin  v.  Rhodes,  76  Mo.  643;  Gamble 

Am.   Dec.  190.  v.  Daugherty,  71  Mo.  599;  Atkinson  r. 

»  Short  V.  Kellogg,  10  Ga.  180.  Atchisou  etc.  R.  R.  Co.,  81  Mo.  50. 

Jddq.  I.  — 6 


§  62     ENTRY  OP  JUDGMENTS  NUNC  PRO  TUNC.       82 

if  it  appears  from  the  files  of  the  court  that  the  motion  was 
made  and  what  its  purpose  was,  and  from  a  recital  in  an 
order  of  court  that  the  motion  had  been  granted.^  In 
Indiana,  an  entry  nunc  pro  tunc  must  be  sustained  by 
something  in  addition  to  parol  evidence  or  the  recollec- 
tion of  the  judge.  Therefore  an  order  cannot  be  made 
after  the  expiration  of  a  term  of  court  stating  that  time 
was  granted  in  that  term  for  the  filing  of  a  bill  of  excep- 
tions, when  there  is  no  record  to  sustain  it.^  The  courts 
of  Alabama,  whose  reports  are  wonderfully  prolific  in 
cases  involving  the  power  to  enter  judgments  nunc  pro 
tunc,  have  viewed  such  entries  with  unfounded  alarm,  and 
have  seen  the  dangers  arising  from  their  encouragement, 
through  some  exaggerating  medium.  These  courts  are 
severe  in  their  condemnation  of  the  practice  of  assisting 
the  record  memoranda  by  parol  evidence.  An  entry  on 
the  docket,  "Estate  of  Solomon  Perkins,  deceased,"  "Final 
settlement,"  "Settlement  made,"  accompanied  by  proof  of 
the  terms  of  the  decree  from  memoranda  made  by  the 
attorney  on  the  back  of  the  account,  and  by  the  testimony 
of  the  judge  that  he  pronounced  an  oral  decree  in  con- 
formity with  the  memoranda,  having  been  used  with 
success  upon  the  hearing  of  a  motion  to  have  a  decree 
ordered  entered  in  conformity  with  the  proof  of  its  ren- 
dition, the  action  of  the  court  was  reversed  upon  appeal, 
the  appellate  court  saying:  "If  we  can  hold  this  sufficient, 
there  is  no  telling  where  we  ought  to  stop.  If  a  judge  can 
refresh  his  memory  by  writings  made  by  a  third  person, 
and  prove  the  terms  of  his  decree  in  that  way,  it  is  the 
same  in  principle  as  allowing  the  terms  of  any  judgment, 
verdict,  or  decree  to  be  established  altogether  by  oral 
testimony;  and  this  would  be  a  very  dangerous  precedent, 
and  going  much  further  than  any  of  our  decisions  war- 
rant."*    The  extreme  position  here  taken  is  the  logical 

*  Hansbrough  v.  Fudge,  80  Mo.  307.     verdict  of  a  jury  in  favor  of  plaintiff, 

*  Schoonover  v.  Reed,  65  Ind.  313;  signedby  its  foreman,  does  not  author* 
Nye  V.  Lewis,  65  Ind.  326.  ize  the   entry  of  judgment   nunc  pi'O 

^  Perkins  v.  Perkins,  27  Ala.  479.  tunc,  there  being  no  entry  in  any  record 
The  fact  that  a  paper  is  among  the  to  show  the  rendition  of  judgment; 
files  in  a  case,  purporting  to  be  the     Herring  v.  Cherry,  75  Ala.  376. 


83       ENTRY  OF  JUDGMENTS  NUNC  PRO  TUNC.      §  63 

result  of  the  general  rule  frequently  announced  and  more 
frequently  violated,  that  a  record  can  only  be  amended 
by  some  matter  of  record.  Chief  Justice  Gibson,  more 
than  twenty  years  ago,  said:  "The  old  notion  that  the 
record  remains  in  the  breast  of  the  court  only  till  the  end 
of  the  term  has  yielded  to  necessity,  convenience,  and 
common  sense."  ^ 

§  63.  Parol  Evidence  as  Basis  of.  —  Whether  the  "old 
notion  "  has  yielded  so  far  as  to  authorize  the  entry  of  a 
judgment  as  of  some  prior  date,  when  there  is  no  record 
evidence  of  its  rendition  at  such  date,  is  doubtful;  but  the 
fact  of  the  rendition  of  a  judgment  being  made  evident 
by  the  record,  a  decided  preponderance  of  authority  au- 
thorizes the  court  to  proceed  in  its  subsequent  investiga- 
tions with  the  aid  of  oral  as  well  as  of  written  evidence. 
Were  the  rule  otherwise,  the  power  of  courts  to  furnish 
relief,  made  necessary  by  the  negligence  or  inadvertence 
of  their  clerks,  would  be  so  restricted  in  its  operation  as 
to  be  of  little  or  no  utility.  The  instances  where,  in  the 
absence  of  the  formal  entry  of  judgment,  the  records  show 
the  final  determination  with  accuracy  and  completeness 
are  few  in  number.  Our  attention  should  not  be  so 
riveted  upon  the  possible  evil  which  might  occasionally 
arise  from  establishing  by  parol  the  terms  of  some  unre- 
corded adjudication  as  to  make  us  oblivious  to  the  more 
probable  evil  of  refusing  to  protect  the  interests  growing 
up  under  actual  adjudications,  which,  though  confessedly 
existing,  have  not  been  reduced  into  the  most  authentic 
form.  Courts  have  a  continuing  power  over  their  records 
not  affected  by  the  lapse  of  time.  Should  the  record  in 
any  case  be  lost  or  destroyed,  the  court  whose  record  it 
was  possesses  the  undoubted  power,  at  any  time  afterward, 
to  make  a  new  record.  In  doing  this,  it  must  seek  infor- 
mation by  the  aid  of  such  evidence  as  may  be  within  its 
reach,  tending  to  show  the  nature  and  existence  of  that 
which  it  is  asked  to  re-establish.    There  is  no  reason  why 

*  Khoada  v.  Commonwealth,  15  Pa.  St.  272. 


§  63      ENTRY  OF  JUDGMENTS  NUNC  PRO  TUNC.       84 

the  same  rule  should  not  apply,  when,  instead  of  being 
lost,  the  record  was  never  made  up,  or  was  so  made  up  as 
to  express  a  different  judgment  than  the  one  pronounced 
by  the  court.  Hence  the  general  rule  that  a  record  may 
bo  amended,  not'  only  by  the  judge's  notes,  but  also  by 
any  other  satisfactory  evidence.^ 

"  But  we  think  it  clear  upon  the  authorities  that  the 
court  may  make  such  amendments  upon  any  competent 
legal  evidence,  and  that  they  are  the  proper  judges  as  to 
the  amount  and  kind  of  evidence  requisite  in  each  case  to 
satisfy  them  what  was  the  real  order  of  the  court."  ^ 
"Each  court  must  necessarily  be  the  proper  judge  of 
what  it  has  decided  and  adjudged,  and  when  it  orders  an 
amendment  of  the  record,  the  presumption  of  other  courts 
must  necessarily  be  that  it  does  not  undertake  to  order  its 
clerk  to  record  what  it  never  had  decided."*  "Whether 
there  was  a  mistake  in  the  record  was  a  question  of  fact 
to  be  established  as  any  other  fact  in  a  court  of  justice  by 
proper  evidence.  For  this  purpose  the  letter  of  the  chief 
justice,  the  entries  on  the  docket-books,  and  the  testimony 
of  the  witnesses  who  heard  the  decision  announced  in  open 
court,  were  all  admissible."  ^  Such  evidence  as  is  compe- 
tent to  amend  a  record  ought  to  be  competent  to  supply 
one.  For  a  court  in  interfering  with  an  existing  record, 
whose  inaccuracy  is  not  evident  from  other  matters  of 
record,  moves  upon  more  doubtful  ground  than  in  con- 
ducting investigations  when  no  matter  of  record  needs  to 
be  modified  or  overthrown.  In  Massachusetts,  the  record 
of  a  judgment  was  completed  after  the  lapse  of  twenty 
years,  and  the  proposition  affirmed  that  the  amount  of 
evidence  for  that  purpose  is  within  the  discretion  of  the 
court.*     The  evidence  in  this  case  was  oral.     In  another 

1  IMatheson's  Adm'r  v.  Grant's  «  Weed  v.  Weed,  25  Conu.  337;  Hoi- 
Adm'r,  2  How.  263;  Clark  v.  Lamb,  lister  v.  Judges  District  Court  of  Lu- 
8  Pick.  415;  19  Am.  Dec.  332.  cas  County,  8  Ohio  St.   201;  70  Am. 

2  Frink  v.  Frink,  43  N.   H.  508;  80  Dec.  100. 

Am.  Dec.  172.  '  Rugg   v.  Parker,  7  Gray,   172;  9 

*  Petition  of  Inhabitants  of  Limerick,     Gray,  209. 
18  Me.  183. 


85       ENTRY  OP  JUDGMENTS  NUNC  PRO  TUNC.      §  63 

instance  the  entry  seems  to  have  been  ordered  upon  mo- 
tion, supported  by  an  affidavit.^  In  several  other  cases, 
the  reception  of  parol  evidence  has  been  sanctioned,  for 
the  purpose  of  showing  the  nature  of  the  judgment  alleged 
to  have  been  rendered;^  and  in  one  the  fact  of  the  rendi- 
tion of  the  judgment  as  well  as  the  relief  granted  was 
established  only  by  parol  evidence.^  Perhaps  the  most 
extreme  case  upon  this  side  of  the  question  and  the  one 
going  the  furthest  to  sustain  nunc  pro  tunc  entries  is  that 
of  Wight,  Petitioner,  134  U.  S.  136.  In  that  case  the 
petitioner  sought  his  release  on  habeas  corpus,  and  his  im- 
prisonment was  justified  under  a  judgment  of  a  district 
court  of  the  United  States.  Before  this  judgment  was 
rendered,  the  case  had  been  certified  to  a  circuit  court  of 
the  United  States,  and  was,  so  far  as  the  records  disclosed, 
pending  in  the  latter  court  when  the  judgment  was  ren- 
dered in  the  former,  and  if  such  were  the  fact,  the  judg- 
ment of  the  district  court  was  void.  When  the  attention 
of  the  circuit  court  was  called  to  the  state  of  its  records, 
it,  on  the  30th  of  September,  1889,  "  upon  its  own  motion 
based  upon  its  own  recollection  of  the  facts  of  the  mak- 
ing of  the  order,"  on  the  twelfth  day  of  March,  1889,  re- 
manding the  case  to  the  district  court,  directed  such  order 
to  be  entered  nunc  pro  tunc  as  of  the  day  last  named,  and 
the  order  being  so  entered,  it  then  appeared  therefrom 
that  the  cause  had  been  remitted  to  the  district  court  and 
that  it  had  jurisdiction  over  Wight  at  the  time  it  passed 
judgment  against  him  and  directed  his  imprisonment. 
In  the  report  of  the  case  it  is  not  shown  that  any  evidence 
whatever  was  oflPered  that  any  order  had  been  made  on 
the  twelfth  day  of  March  remanding  the  case  to  the  district 
court.  The  judge,  in  directing  the  nunc  pro  tunc  entry, 
professed  to  act  wholly  on  his  recollection,  and  while  there 
is  no  occasion  in  this  instance  to  doubt  the  accuracy  of 

'  Doe  V.  Litherbery,  4  McLean,  442.  555;  Davis  w.  Shaver,  1  Phill.  (N.  C.)  18; 

*  Burnett  v.  State,  14  Tex.  455;  6.')  91  Am.  Dec.  92;  Aydelotte  v.  Brittain, 

Am.   Dec.    1.31;  State   v.   McAlpin,   4  29  Kan.  98. 
Ired.  140;  Johnson  v.  Wright,  27  Ga.         "  Bobo  v.  State,  40  Ark.  224. 


§  64      ENTRY  OF  JUDGMENTS  NUNC  PRO  TUNC.       86 

such,  recollection,  and  it  was  probably  not  disputed  by 
the  prisoner,  yet  we  cannot  view  this  precedent  otherwise 
than  with  alarm.     If  a  judge  is  to  act  wholly  on  his  recol- 
lection, and  is  not  even  required  to  give  evidence  of  it  as 
if  he  were  a  witness,  by  what  method  can  one  injured  by 
a  nunc  pro  tunc  entry  obtain  a  review  of  the  action  of  the 
court?  and  by  what  means  can  an  unscrupulous  judge, 
should  one  ever  be  elevated  to  the  bench,  be  prevented 
from  entering  nunc  pro  tunc  judgments  which  were  never 
before  rendered  ?    The  court,  in  making  its  decision,  acted 
chiefly  upon   a  statement  of  the  law  upon  this   subject 
made  by  Mr.  Bishop  in  section  1160  of  the  first  volume  of 
his  work  on  criminal    procedure,    and    that  section  may 
be  so  construed  as  to  support  the   action   of  the  court. 
The  authorities,  however,  which  Mr.  Bishop  cites  do  not, 
any  of  them,  necessarily  sustain  the  position  which  the 
supreme  court  of  the  United   States  understood  him  to 
maintain,  and  some  of  them  were  decisions  of  the  supreme 
court  of  Missouri,  a  court  which  has  uniformly  refused  to 
act  except  upon  some  matter  of  record.    Of  the  cases  cited 
the  most  relevant  was  Bilanshy  v.  State,  3  Minn.  427.    An 
examination  of  that  case  reveals  that  no  final  judgment  had 
been  rendered,  and  that  the  court  proceeded  on  the  ground 
that,  until  final  judgment,  all  proceedings  are  in  fieri  and 
subject  to  amendment,  and  in  the  case  before  the  court 
the  counsel  for  the  defendant  did  not  deny  that  the  pro- 
posed  amendments  were   necessary  to  make  the  record 
speak  the  truth.     There  is  nothing  in  the  report  of  the 
Minnesota  case  to  show  whether  or  not  the  amendments 
were  supported  by  the  records,  and  certainly  nothing  to  in- 
dicate that  the  judge  acted  on  his  recollection  and  in  the 
absence  of  all  evidence. 

§  64.     Practice  in  Obtaining  Nunc  pro  Tunc  Entries. — 

The  circumstances  in  which  nunc  pro  tunc  entries  become 
necessary  or  proper  are  so  varied  that  rules  of  practice 
applicable  to  all  cases  cannot  be  formulated.     Doubtless 


87       ENTRY  OF  JUDGMENTS  NUNC  PRO  TUNC.      §  65 

all  courts  have  the  right  and  are  under  the  duty  to  make 
their  records  speak  the  truth  and  the  whole  truth,  whether 
the  parties  to  the  action  or  any  other  person  wishes  them 
to  do  so  or  notj  and  a  court  may  therefore  direct  a  nunc 
pro  tunc  entry  on  its  own  motion,  as  was  done  in  Wight's 
case,  134  U.  S.  136.^  Any  person  having  rights  depend- 
ent upon  or  affected  by  a  judgment  may  call  the  atten- 
tion of  the  court  to  the  failure  of  its  clerk  to  enter  it,  and 
ask  that  the  entry  be  made  as  of  the  day  when  the  judg- 
ment was  rendered.^  The  proceedings  on  application  to 
enter  judgment  nunc  pro  tunc  are  summary,  and  not  re- 
quired to  be  supported  by  pleadings.^  The  practice  in 
some  courts  seems  to  require  the  moving  party  to  give 
notice  of  his  motion  to  his  adversary,^  and  certainly  this 
is  very  proper  when  the  entry  is  not  required  to  be  made 
as  a  matter  of  course,  and  where  the  motion  is  supported 
by  other  evidence  than  the  records  or  quasi  records  of  the 
court.  If  the  moving  party  wishes  to  use  the  entry,  when 
procured,  to  affect  the  rights  of  one  not  a  party  to  the 
action,  he  should  be  notified  of  the  motion.  If  he  does 
not  appear  to  have  had  notice  of  the  rendition  of  the 
judgment,  nor  of  the  motion  to  enter  it  nunc  pro  tunc,  he 
may  sometimes  escape  the  effect  of  the  entry .^  The  more 
usual  practice  is  to  proceed  ex  parte  to  order  entries  re- 
quired to  complete  the  record,  especially  where  the  court 
acts  solely  upon  matters  of  record.'* 

§  65.  Termination  of  Jurisdiction.  —  In  Ohio,  it  has 
been  decided  that  if,  after  the  rendition  of  a  judgment, 
and  before  the  entry  thereof,  the  jurisdiction  of  the  court 
over  that  class  of  cases  is  withdrawn,  the  court  as  to  them 

1  Crim  V.  Kessing,  89  Cal.  478.  •=  Fuqua  v.  Carriel,  1  Minor,  170;  12 

2  Estate  of  Cook,  77  Cal.  220;  11  Am.  Dec.  46;  Allen  w.  Bradfonl,  .3  Ala. 
Am.  St.  Rep.  267;  Reid  w.  Morton,  119  281;  37  Am.  Dec.  689;  Stokes  v.  Shan- 
Ill.  118;  Crimu  Ke.ssing,  89  Cal.  478.  non,  55  Mi.ss.  583;  Naber.s  ?'.  Meredith, 

3  Urbaniski  v.  Manns," 87  Ind.  585.       67    Ala.    333;    Long    v.    Stallord,    103 
*Berthold».  Fox,  21  Minn.  51;  King    N.  Y.  274;  Portis  v.  Talbot,  33  Ark. 

V.  Burnham,  129  Mass.  598.  218;  Estate  of  Cook,  77  Cal.  220;  11 

*  Koch  V.  Atlantic  and  Pacific  R.  R.  Am.  St  Rep.  267;  Crim  v.  Kessing, 
Co.,  77  Mo.  354.  89  Cal.  478. 


§  66     ENTRY  OF  JUDGMENTS  NUNC  PRO  TUNC.       88 

ceases  to  exist,  and  cannot  enter  its  judgment  nunc  pro 
tunc}  The  correctness  of  this  decision  may  well  be 
doubted.  The  case  seems  to  us  to  be  one  where  the  cor- 
rectory  powers  of  the  court  could  have  been  employed  in 
the  furtherance  of  justice,  without  any  infringement  of  the 
law.  The  jurisdiction  of  the  court  over  the  case  had  been 
completed  by  hearing  and  determining  the  issues  involved^ 
and  by  granting  appropriate  relief.  What  remained  to  be 
done  after  the  withdrawal  of  jurisdiction,  either  in  giving 
effect  to  the  judgment  or  in  correcting  or  completing  the 
records,  the  court  had  power  to  do  by  virtue  of  its  general 
jurisdiction,  and  its  continuing  power  over  its  records. 
In  considering  whether  there  was  an  omission  of  some- 
thing from  its  records  which  ought  not  to  be  omitted,  the 
court  was  not  in  the  exercise  of  the  same  kind  of  jurisdic- 
tion exercised  by  it  in  trying  the  cause;  nor  was  the 
jurisdiction  over  the  records  necessarily  dependent  upon 
the  continuance  of  jurisdiction  over  the  subject-matter  of 
the  suit.  Where  an  action  was  brought  under  a  statute, 
and  judgment  rendered,  which  was  delayed  by  the  pen- 
dency of  a  motion  for  a  new  trial,  during  which  the  stat- 
ute was  repealed,  judgment  was  entered  as  of  a  time  when 
the  statute  was  in  force,*^ 

§  66.  Rights  of  Third  Persons.— The  entry  of  judg- 
ments or  decrees  nunc  pro  tunc  is  intended  to  be  in  fur- 
therance of  justice.'  It  will  not  be  ordered  so  as  to  affect 
third  persons  who  have  acquired  rights  without  notice  of 
the  rendition  of  any  judgment.*  Generally,  such  condi- 
tions will  be  imposed  as  may  seem  necessary  to  save  the 
interests  of  third  parties,  who  have  acted  bona  fide  and 
without  notice;  but  if  such  conditions  are  not  expressed 

1  Ludlow  V.  Johnson,  3  Ohio,  553;  15  Am.  Dec.  614;   Miller  v.  Wolf,  fi3 

17  Am.  Dec.  601).  Iowa,  233;  Smith  v.  Hood,  25  Pa,  St. 

*  Springfield  t).  Worcester,  2  Cush.  52.  218;  64  Am.  Dec.  692;  Bank  of  New- 
3  Hemininc  v.  Batchelor,  23  Week,  burgh    v.    Seymour,    14    Johns.    219; 

Rep.  398;  33  L.  T.,  N.  S.,  16;  44  L.  J.     Koch  v.  A.  &  P.  R.  R.  Co.,  77  Mo.  354; 
Ex.  54.  Ninde  v.  Clark,  62  Mich.  124;  4  Am. 

*  Gaipiu  V.  Fishburue,  3  McCord,  22;     St.  Rep.  823. 


89       ENTRY  OF  JUDGMENTS  NUNC  PRO  TUNC.      §  67 

in  the  order  of  the  court,  they  are,  nevertheless,  to  he  con- 
sidered as  made  a  part  of  it  by  force  of  the  law.  The 
public  are  not  expected  nor  required  to  search  in  unusual 
places  for  evidences  of  judgments.  They  are  bound  to 
take  notice  of  the  regular  records,  but  not  of  the  existence 
and  signijfication  of  memoranda  made  by  the  judge,  and 
upon  which  the  record  may  happen  to  be  afterwards  per- 
fected.^ The  expression  so  frequently  made  that  a  nunc 
pro  tunc  entry  is  not  to  affect  the  rights  of  third  persons 
must  not  be  understood  as  signifying  that  effect  must  be 
denied  to  such  an  entry  in  all  cases  where  third  persons 
have  acquired  interests.  Courts  in  determining  whether 
or  not  to  amend  or  perfect  their  records  are  controlled  by 
considerations  of  equity.  If  one  not  a  party  to  the  action 
has,  when  without  notice  of  the  rendition  of  the  judgment 
or  of  facts  from  which  such  notice  must  be  imputed  to 
him,  advanced  or  paid  money  or  property,  or  in  other 
words,  has  become  a  purchaser  or  encumbrancer  in  good 
faith  and  upon  a  valuable  consideration,  then  the  subse- 
quent entry  of  such  judgment  nunc  pro  tunc  will  not  be 
allowed  to  prejudice  him.  Otherwise  its  effect  against 
him  is  the  same  as  if  it  had  been  entered  at  the  proper 
time.^ 

§  67.  Effect  of. — When  a  judgment  has  been  entered 
nibnc  pro  tunc,  and  is  offered  in  evidence  in  another  action 
or  proceeding,  it  will  be  presumed  to  have  been  entered 
regularly  and  upon  competent  and  sufficient  evidence.^ 
With  the  exception  pointed  out  in  the  previous  section,  a 
judgment  entered  nunc  pro  tunc  must  be  everywhere  re- 
ceived and  enforced  in  the  same  manner  and  to  the  same 
extent  as  though  entered  at  the  proper  time.  Though  an 
execution  may  have  issued,  and  proceedings  under  it  cul- 

»  Hays  T.  Miller,  1  Wash.  163;  Jor-  *  Leonard   v.    Bronghton,    120   Ind. 

dan  V.  Petty,  5  Fla.  326;  McCormick  536;  16  Am.  St.  Rep.  347;   Tapley  v. 

V.  Wheeler,  36  111.  114;   85  Am.  Dec.  Goodsell,  122  Mass.  176. 

388;  Graham  v.  Lynn,  4  B.  Mon.   17;  *Estateof  Cook,  83  Cal.  415;  Allen  t7. 

39  Am.   Dec.  493;  Acklen  v.  Acklen,  Sales,  56  Mo.  28;  Belkin  v.  llliodes,  76 

45  Ala.  609.  ^io-  6^:3;  Bryan  v.  Streeter,  57  Ala.  104. 


§  68     ENTRY  OF  JUDGMENTS  NUNC  PRO  TUNC.       90 

minated  by  the  sale  of  property,  when  there  was  nothing 
on  the  record  to  support  it,  yet  the  omission  was  one  of 
evidence,  and  not  of  fact,  and  the  evidence  being  supplied 
in  a  proper  manner,  full  force  and  effect  will  be  given  to 
the  fact  as  if  the  evidence  had  existed  from  the  beginning.* 
Where,  however,  the  entry  of  judgment  nunc  pro  tunc  is 
not  occasioned  by  the  negligence  of  the  clerk  in  not  enter- 
ing a  judgment  duly  rendered,  but  by  the  death  of  a  party 
after  the  cause  was  submitted  and  before  its  decision, 
then  the  only  object  of  the  entry  is  to  relieve  the  judg- 
ment from  the  apparent  error  of  having  been  given  after 
the  death  of  a  party.  For  most  purposes,  the  effect  of  the 
judgment  is  not  different  from  what  it  would  be  had  it  not 
been  entered  nunc  pro  tunc,  because  until  its  rendition  no 
proceedings  could  be  taken  for  its  enforcement.  There- 
fore the  statute  of  limitations  does  not  commence  to  run 
against  an  action  upon  it  until  the  date  of  its  actual  ren- 
dition.^ 

§  68.    Must  be  Based  on  Previous  Act  of  the  Court. — 

It  must  be  observed  that  the  entire  purpose  of  entering 
judgments  and  decrees  as  of  some  prior  date  is  to  supply 
matters  of  evidence,  and  not  to  supply  or  modify  matters 
of  fact.  The  failure  of  a  court  to  act,  or  its  incorrect 
action,  can  never  authorize  a  nunc  pro  tunc  entr3^  If  a 
court  does  not  render  judgment,  or  renders  one  which  is 
imperfect  or  improper,  it  has  no  power  to  remedy  any 
of  these  errors  or  omissions  by  treating  them  as  clerical 
misprisions.^ 

»  Graham  v.  Lynn,  4  B.  Mon.  17;  39  ^  Gray  v.  Brignardello,  1  Wall.  627; 

Am.  Dec.  493;  Davis  w.  Shaver,  1  Phill.  Petition  of  Inhabitants  of   Limerick, 

(N.  C.)  IS;   91  Am.  Dec.  92;  Rugg  v.  18  Me.  183;  Hyde  v.  Curling,  10  Mo. 

Parker,  9  Gray,  209;  Burnett  t).  State,  359;  Gibson  v.  Chouteau,  45  Mo.  171; 

14  Tex.  455;  65  Am.  Dec.   131;  Bush  100  Am.   Dec.  366;  Fetters  v.  Baird; 

V.  Bush,  46  Ind.  70;   Barker  v.  Stow,  70  Mo.  389;  Woolridge  v.   Quinn,  70 

20  Blatchf.   185;    Tapley  v.  Goodsell,  Mo.   370;    Cassidy  v.    Woodward,   77 

122  Mass.  176.  Iowa,  355;  Garrison  v.  People,  6  Neb. 

=*  Borer  v.  Chapman,  119  U.  S.  587.  274. 


91  AMENDING   JUDGMENTS.  §  69 

CHAPTER  IV. 

AMENDING  JUDGMENTS. 

§  69.     During  term. 

§  70.     Correcting  judgment  after  term. 

§  71.     Ameniiiug  judgment  entry. 

§  72.     Data  for,  in  the  United  States. 

§  72  a.     Notice  of  application. 

§  73.     Time  within  which  amendments  may  be  made. 

§  74.     Eifect  of  amendments  as  against  parties  and  strangers. 

§  74  a.     Discretion  of  court  in  amending  judgments. 

§  69.  During  Term.  —  "  During  the  terme  wherein  any 
judiciall  act  is  done,  the  record  remaineth  in  the  brest  of 
the  judges  of  the  court,  and  in  their  remembrance,  and 
therefore  the  roll  is  alterable  during  that  terme,  as  the 
judges  shall  direct;  but  when  the  terme  is  past,  then  the 
record  is  in  the  roll,  and  admitteth  no  alteration,  aver- 
ment, or  proof  to  the  contrarie."  ^  Of  the  law  thus  laid 
down,  the  only  part  remaining  unshaken  to  the  present 
time  is,  that  during  the  term  the  proceedings  remain  in 
the  breast  of  the  judges.  Not  only  do  the  records  during 
that  time  remain  subject  to  the  revision  of  the  court,  but 
the  judgment  itself  may  be  altered,  revised,  or  revoked, 
as  well  as  amended  in  respect  to  clerical  errors  and  mat- 
ters of  form.^ 

'  Co.  Lit.  260  a;  3  Bla.  Com.  407.  Memphis    v.    Brown,    94   U.    S.    715; 

2  Barrel!   v.  Tilton,   119  U.  S.  637;  Green  v.  Pittsburgh  etc.  R.  R.  Co.,  11 

Alabama  G.  L.  Ins.  Co.  v.  Nichols,  109  W.  Va.  685.     But  in  Grant  ?;.  Schmiilt, 

U.  S.  232;  Wolmerstadt  v.  Jacobs,  61  22  Minn.  1,  it  was  held  that  the  com- 

lowa,  372;  Ryon  v.  Thomas,  104  Ind.  mon-law  rule  authorizing  the  judge  to 

59;  Goddard  v.  Ordway,  101  U.  S.  745;  set  aside,  correct,  or  modify  his  judg- 

State   V.    Dougherty,    70    Iowa,    439;  ment  at  any  time  during  the  term  was 

Moore  v.  Taylor,  1  Idaho,  N.  S.,  630;  inapplicable  to  the  system  of  practice 

Morgan  v.  Eggers,  127  U.  S.  63;  Burch  in  that  state;  that  "the  control  of  the 

V.  Scott,  1  Bland,  112;  Dane's  Abr.,  c.  court    over   causes    coming    before    it 

146,  art.  5,  sec.  11;  Stahl  v.  Webster,  (except  where  retained  by  the  statute, 

II  111.  511;  De  Castro  v.  Richardson,  and  except  the  necessary  control  over 

25  Cal.  49;  Obenchain  v.  Comegys,  15  its  records  which  every  court  has)  ter- 

Ind.    496;    Robinson   v.    Comm'rs,    12  miuates  with  the  entry  of  judgment "; 

Md.  1.32;  Lane  w.  EUinger,  32  Tex.  369;  and  therefore  that  the  only  mode  in 

Palsgrave  v.  Ross,  2   L.   C.    Jur.  95;  which  a  judgment  could  be  modified 

Richardson   v.    Howk,    45    Ind.    451;  or    vacated    was    by    appeal,    or    by 

United  States  v.  Harmison,  3  Saw.  556;  motion  for  a  new  trial. 


§  70  AMENDING    JUDGMENTS.  92 

§  70.  Correcting  Judgments.  —  As  a  general  rule,  no 
final  judgment  can  be  amended  after  the  term  at  which  it 
was  rendered.  The  law  does  not  authorize  the  correction 
of  judicial  errors  under  the  pretense  of  correcting  clerical 
errors.  To  entitle  a  party  to  an  order  amending  a  judg- 
ment, order,  or  decree,  he  must  establish  that  the  entry 
as  made  does  not  conform  to  what  the  court  ordered.^ 
Thus  if  a  solicitor  inadvertently  omits  from  a  decree  some 
clause  which  he  intended  to  insert,  and  presents  the  decree 
to  the  judge,  who  adopts  it  as  the  judgment  of  the  court, 
this  is  no  ground  for  an  amendment,  for  the  facts  do  not 
show  that  the  court  intended  to  pronounce  any  different 
decree  from  the  one  prepared  by  the  solicitor;  and  to 
change  the  record  would  be  equivalent  to  exercising  a 
revisory  power  over  the  judgment  itself  by  the  same 
authority  that  pronounced  it.^  The  following  amend- 
ments have  been  declared  improper,  because  correcting  or 
revising  judicial  action,  or  supplying  the  want  of  it,  rather 
than  correcting  clerical  errors  or  supplying  clerical  omis- 
sions: Changing  a  judgment  against  plaintiff  for  costs  to 
a  judgment  against  the  person  for  whose  benefit  plaintifi" 
in  his  official  capacity  as  clerk  of  the  court  brought  the 
action;^  correcting  an  alleged  error  in  the  mode  of  com- 
puting interest;^  allowing  interest  when  the  judgment  as 
first  entered  did  not  allow  any;^  showing  that  the  court 
was  of  the  opinion  that  plaintiff"  ought  to  recover  costs, 
notwithstanding  the  smallness  of  his  recovery;^  changing  a 

iGarlington  v.   Copeland,  32  S.   C.  26  Mo.  App.  541;  Boyd  v.  Platner,  5 

57;  Ross  V.  Ross,  83  Mo.  100;  Moore  v.  Mont,  226. 

State,  63  Ga.  165;  Becker  v.  Sauter,  89  ^  Forquer   v.    Forquer,    19    111.    68; 

111.  596;  Botkin  v.   Comm'rs,   1   Ohio,  Bac.    Abr.,    tit.     Amendments,    etc., 

375;    13   Am.   Dec.    630;   Bramlett  v.  F;    Scroggins's  Adm'r  v.  Scroggins,   1 

Pickett,  2  A.   K.   Marsh.   10;  12  Am.  J.  J.  Marsh.  362;  Powell's  Appellate 

Dec.   .350;  Balis  v.  Wilson,   12  Mart.  Proceedings,  387;  Dor sey  v.  Dorsey,  37 

<La.)  358;  13  Am.  Dec.  376;  Bethel  u.  Md.  74;  11  Am.  Rep.  528;  Kemp  v. 

Bethel,  6  Bush,  65;  99  Am.  Dec.  655;  Cook,  18  Md.  131;  79  Am.  Dec.   681; 

Smith  V.  Hood,  25  Pa.  St.  218:  64  Am.  Bertraud  v.  Gugy,  9  L.  C.  Rep.  260; 

Dec.  692;  Crew  v.  McCafferty,  124  Pa.  Huot  v.  Page,  9  L.  0.  Rep.  226. 

St.  200;  10  Am.  St.  Rep.  578;  Phillips  »  Boland  v.  Benson,  54  Wis.  387. 

V.  Negley,   117  U.  S.  665;  Russell  v.  *  Garrett  v.  Love,  90  N.  C.  368. 

United  States,  15  Ct.  of  CI.  168;  Gray  *  Factors  &  T.  Ins.  Co.  v.  New.   H. 

V.   Vandyke,  5  Del.   134;  Browden  v.  P.  Co.,  39  La.  Ann.  583. 

Faulkner,  82  Ala.  257;  Evans  v.  Fisher,  ^  Shackelford  v.  Levy,  63  Miss.  125. 


93  '  AMENDING   JUDGMENTS.  §  70 

judgment  of  dismissal  to  one  of  dismissal  "  upon  merits";^ 
showing  the  due  appointment  of  a  guardian  ad  litem  for 
minors,  his  acceptance  in  writing,  and  his  having  acted 
for  such  minors  in  the  settlement  of  an  administration.* 
To  the  rule  that  a  judgment  as  rendered  cannot  be 
amended  after  the  lapse  of  the  term,  some  apparent  ex- 
ceptions are  well  supported  by  authority.  In  some  of  the 
states  the  courts  may,  at  any  time,  add  to  their  judgments 
such  clauses  as  may  be  necessary  to  carry  them  into  effect, 
when  there  is  anything  in  the  judgment  by  which  to 
amend.^  In  New  York,  the  omission  from  a  decree  of 
any  matter  which,  if  applied  for  on  the  hearing,  would 
have  been  granted  as  a  matter  of  course,  "as  necessary  or 
proper  to  carry  into  eflPect  the  decision  of  the  court,"  will 
be  supplied  on  motion.'*  In  such  case  the  omission  will 
be  corrected  by  a  distinct  order,  without  making  any 
change  upon  the  decree.^  These  exceptions,  tolerated  at 
first  on  the  ground  that  they  did  not  affect  the  merits  of 
the  case  so  as  to  require  a  rehearing,  came  to  be  regarded 
as  authority  for  interference  in  matters  of  substance  and 
importance.     An  action  was  instituted  on  the  joint  and 

1  Williams  v.  Hayes,  68  Wis.  246.  *  Gardner  v.   Bering,    2   Edw.    Ch. 

2  Hortou  V.  Beadle,  62  Ala.  32.  131;  Ray  v.  Connor,  3  Edw.  Ch.  478; 
^  Trammell   v.    Trammell,    25   Tex.     Rogers  w.  Rogers,  1  Paige,  188;  Stan- 

App.  261.  Thus  where  it  appears  nard  w.  Hubbell,  123  N.  Y.  520.  "The 
from  the  record  that  a  name  ouglit  to  rule  respecting  the  amendment  of  de- 
have  been  inserted  in  the  judgment,  crees  as  it  has  been  enforced  by  this 
the  record  w-as  amended  by  inserting  court  may  be  stated  as  follows:  The 
such  name:  Bank  v.  Seymour,  14  court  will  not  vary  or  alter  au  enrolled 
Johns.  219.  An  amendment  has  also  decree  in  a  material  point  without  a 
been  authorized  after  the  lapse  of  the  bill  of  review  or  a  rehearing,  but  it 
term  so  as  to  make  the  judgment  bear  will  amend  its  enrolled  decree,  even 
interest,  because,  by  the  rule  of  the  in  a  material  respect,  on  petition, 
court,  interest  was  allowed  at  a  certain  whenever  amendment  is  necessary  to 
rate,  and  the  omission  to  include  it  give  full  expression  to  the  judgment 
in  the  judgment  must  be  deemed  a  of  the  court,  and  the  amendment  is 
clerical  error:  Bank  v.  Wistar,  3  Pet.  such  as  the  court  would  have  made 
481.  In  En<.dand,  the  broad  rule  is  when  the  decree  was  entered,  if  it 
laid  down,  that  "it  is  always  open  to  had  been  asked  for":  Jones  v.  Dav- 
the  court  on  motion  to  correct  its  enport,  45  N.  J.  Eq.  77;  Dorsheimer 
judgment  to  relieve  any  party  who  v.  Rorbach,  24  N.  J.  Eq.  38;  Ruch- 
may  be  unduly  prejudiced  by  any  act  man  v.  Decker,  27  N.  J.  Eq.  244; 
done  under  its  order,  and  to  prevent  Jarmon  v.  Wisnall,  24  N.  J.  Eq. 
any     injurious     consequences     which  68. 

may  flow  from  its  error  ":  Kelly,  C.  B.,         *  Clark  v.  Hall,  7  Paige,  382. 
in  Huffer  v.  Allen,  L.  R.  2  Ex.  15. 


§  70  AMENDING    JUDGMENTS.  94 

several  bond  of  two,  secured  by  a  mortgage  made  by  one 
only.     A  decree  was  taken  for  the  sale  of  the  mortgaged 
premises  and  against   the  mortgagor  for   the  deficiency 
which  should  exist  after  the  sale.    Upon  application,  with- 
out suggestion  of  any  misprision  of  the  clerk,  the  decree 
was  amended  so  as  to  be  against  both  defendants  for  the 
deficiency.     Upon  appeal,  the  chancellor  said:   "I  have 
hesitated,  therefore,  whether  it  could  be  proper  without  a 
rehearing  to  amend  the  decree  in  a  matter  of  substance 
so  material  to  the  rights  of  the  appellant;  and  upon  ex- 
amination of  the  cases  I  am  satisfied  such  an  amendment 
would  not  have  been  permitted  in  the  courts  of  chancery 
in  England  and  in  Ireland,  without  discharging  the  en- 
rollment and  granting  a  formal  rehearing  of  the  cause." 
He  considered,  however,  that   a  difi'erent   rule  had  been 
established  by  the  cases  allowing  amendments,  by  insert- 
ing what  would  have  been  granted  as  a  "matter  of  course"; 
that  in  the  present  case  both  defendants  were  properly 
parties  to  a  decree  for   the  deficiency;   that  a  decree  so 
drawn  would  have  been  signed  as  "a  matter  of  course"  in 
the  first  instance;  and  therefore  that  the  amendment,  as 
a  matter  of  course,  had  been  properly  made.^     Similar  in 
effect  was  the  following,  from  an  opinion  in  a  late  case  in 
California:    "The  judgment  in  this  case  as  first  entered 
was  defective,  in  not  designating  the  defendants  who  were 
personally  liable  for  the  debt;  but  inasmuch  as  the  record 
shows  who  they  were,  the  court  had  power  to  amend  the 
judgment  at  any  time,  by  adding  a  clause  designating  the 
defendants  who  were  personally  liable.^     But  the  failure 
of  the  court  to  render  judgment  according  to  law  must 
not.  be  treated  as  a  clerical  misprision.     Where  there  is 
nothing  to  show  that   the  judgment  entered  is  not   the 
judgment  ordered  by  the  court,  it  cannot  be  amended.' 

^  Sprague  v.  Jones,  9  Paige,  395.  unless  it  is  shown  that  the  judgment 

2  Leviston  v.  Swan,  33  Cal.  480.  entered  is  not  the  one  to  which  the  con- 

'  Rogers  v.  Bradford,  8   Bush,  164.  sent  was  given:  Knox  w.  Moser,  72  Iowa, 

If  a  judgment  is  entered  by  consent,  it  154;  McEachem  v.  Kerchner,  90  N.  0. 

cannot  be   corrected  by  amendment,  177;  Gray  v.  Robinson,  90  Ind,  527. 


95  AMENDING   JUDGMENTS.  §  70 

On  the  one  hand,  it  is  certain  that  proceedings  for  the 
amendment  of  judgments  ought  never  to  be  permitted  to 
become  revisory  or  appellate  in  their  nature;  ought  never 
to  be  the  means  of  modifying  or  enlarging  the  judgment 
or  the  judgment  record,  so  that  it  shall  express  something 
which  the  court  did  not  pronounce,  even  although  the 
proposed  amendment  embraces  matter  which  ought  clearly 
to  have  been  so  pronounced.*  On  the  other  hand,  there 
are  many  cases  in  which  it  so  clearly  appears  that  the 
judgment  as  entered  is  not  the  sentence  which  the  law 
ought  to  have  pronounced  upon  the  facts  as  established 
by  the  record,  that  the  court  acts  upon  the  presumption 
that  the  error  is  a  clerical  misprision,  rather  than  a  judicial 
blunder,  and  sets  the  judgment,  or  rather  the  judgment 
entry,  right  by  an  amendment  nunc  pro  tunc.^  The  chief 
objection  to  the  rule  permitting  amendments  to  insert 
that  which  would  have  been  inserted  as  a  "matter  of 
course,"  had  the  attention  of  the  court  been  directed  to  it 
when  the  judgment  was  rendered,  is  in  the  uncertainty 
of  its  application,  arising  from  the  difficulty  of  determin- 
ing what  is  a  "matter  of  course."  When  the  facts  are 
settled  by  written  findings,  or  otherwise  made  certain, 
every  judge,  it  must  be  presumed,  would  as  a  "matter  of 
course"  award  complete  and  appropriate  relief  with  re- 
spect to  every  matter  brought  to  his  attention,  if  it  were 
not  for  the  possibility  of  his  erring  in  regard  to  the  law. 
Relief  which  one  judge  may  grant  "  as  a  matter  of  course," 
another  may  deny  "  as  a  matter  of  course  ";  and  if  amend- 
ments in  matters  of  substance  may  be  made  as  "matters 
of  course,"  it  may  follow  that  relief  may  be  aw^arded  as 
an  amendment  which  would  have  been  refused  had  it 
been  asked  when  the  judgment  was  pronounced. 

1  McLean  v.  Stewart,  21  N.  Y.  Sup.  Schroeder's  Estate,  46  Cal.  316;  Doane 

Ct.  472;  Milan  County  v.  Robertson,  v.  Glenn,  1  Col.  456;  Sjjrague  v.  Jones, 

47   Tex.  222;    Turner  v.   Christy,  50  9  Paige,  395;  Huntington  v.  Zeigler,  2 

Mo.   145;    Burning  v.  Burkhardt,   34  Oliio   St.   10;    Smith   v.  Kennedy,  63 

Wis.  585.  Ala.  334. 

'Anderson   v.   Parker,  6   Cal.  201; 


§  71  AMENDING   JUDGMENTS.  96 

Generally,  when  a  court  has  disposed  of  a  cause  by  its 
final  judgment,  and  its  jurisdiction  is  not  continued  by  a 
motion  for  a  new  trial  or  some  similar  proceeding,  it  has, 
after  the  lapse  of  the  term,  no  further  authority  over  the 
parties  or  the  subject-matter  of  that  action,  except  such  as 
arises  from  proceedings  to  give  effect  to  the  judgment. 
It  may,  however,  under  the  pretense  of  correcting  clerical 
errors  or  omissions,  direct  the  judgment  to  be  altered  in 
some  matter  of  substance,  so  as  to  either  withhold  relief 
given  by  the  original  judgment  or  grant  relief  not  there 
awarded.  In  such  a  case  its  action  is  clearly  judicial 
and  revisory,  being  devoted  to  correcting  its  supposed 
errors  or  its  want  of  action,  and  not  to  making  its  records 
speak  the  truth.  Upon  principle,  its  action  seems  to  be 
taken  in  a  cause  and  over  a  matter  of  which  it  has  no 
jurisdiction,  and  therefore  to  be  void,  and  this  is  the  view 
taken  in  some  courts,'  while  others  deny  this  conclusion 
and  assert  that  the  amendatory  order  must  be  treated  as 
valid,  until  set  aside  upon  appeal  or  by  some  other  pro- 
ceeding.^ 

§  71.  Correcting  Clerical  Errors  and  Omissions.  —  The 
rule  that  the  record  admits  of  no  alteration  after  the  term 
is  obsolete.  Even  in  England  the  judgment  may  be  set 
right  and  amended  by  another  part  of  the  record,  so  as  to 
correct  any  misprision  or  neglect  of  the  clerk  in  entering 
the  names  of  the  parties;  or  in  the  form  of  the  judgment. 
In  all  cases  the  entry  of  judgment  may  be  made  to  con- 
form to  the  record  and  the  instructions  of  the  clerk.^  All 
courts  have  inherent  power  to  correct  clerical  errors  at 
any  time,*  and  to  make  the  judgment  entry  correspond 
with   the    judgment   rendered.*     This   power    exists    in 

'Thompson  v.  Thompson,   73  Wis.  lett,5Nott&  Mc0.384;Duvalli'.  Wells, 

84.  4  Har.  &  McH.  164;  Brush  v.  Robbins, 

2  Stannard   v.  Hubbell,   123  N,   Y.  3  McLean,  486;  O'Connor  v.  Mullen, 

520.  11  111.  57. 

*  Bac.  Abr.,  tit.  Amendments,  F.  *  Scroggins's  Adm'r  v.  Scroggins,   1 

*  Burson  v.  Blair,  12  Ind.  371;  Bank  J.  J.  Marsh.  362;  Gibson  v.  Wilson, 
of  U.  S.  V.  Moss,  6  How.  31;  Finnell  18  Ala.  63;  Chambers  v.  Hodges,  3 
V.  Jones,  7  Bush,  359;  Paddon  v.  Bart-  Tex. '51 7;  Jenkins  v.  Eldridge,  1  Wood 


y'  AMENDING    JUDGMENTS.  §  71 

criminal  prosecutions  as  well  as  in  civil  cases.^  Where 
the  record  contains  sufficient  matter  to  show  that  the 
judgment  entered  is  not  the  one  rendered,  it  ma}^  be  cor- 
rected in  respect  to  the  amount  or  kind  of  money  recov- 
ered of  defendant,^  or  the  number  of  days'  imprisonment 
which  he  must  suffer,^  or  by  inserting  the  names  of  the 
members  of  the  partnership  where  their  firm  name  only 
had  been  stated/  or  otherwise  correcting  the  name  of  a 
party ,^  or  giving  the  true  date  of  the  rendition  of  a  judg- 
ment,® or  including  a  party  whose  name  had  been  omitted 
from  the  original  entry/ or  excluding  one  whose  name  had 
been  improperly  inserted,^  or  supplying,  in  a  judgment 
against  a  garnishee,  the  clerk's  failure  to  recite  the  amount 
of  the  original  judgment,^  or  stating  the  rate  of  interest 
which  the  judgment  is  to  bear,"*  or  making  the  judgment 
for  defendant  instead  of  for  plaintiflf,  where  its  entry  ia 
favor  of  plaintiff  was  inadvertent,"  or  conforming  the  judg- 
ment to  the  directions  of  an  appellate  court  when  it  had 
been  inadvertently  entered  so  as  not  to  comply  with  such 
directions,*^  or  correcting  a  mistake  in  computing  the 
amount  due  on  a  note,*^  or  supplying  the  omission  of  the 
clerk  to  state  that  a  foreclosure  sale  should  be  made  "  with- 

&  M.  61;  Harris  v.  Billingsley,  IS  Ala.  Dobbins,  31  La.  Ann.  530.    But  where 

438;  Burning  v.   Buikhardt,    34  Wis.  the    name    of   a   party   is    incorrectly 

58.5;  Robertson  v.  Neal,   60  Mo.   579;  stated  in  the  complaint,  summons,  and 

State  V.  Primm,  61   Mo.  166;  Wolfiey  judgment,   it   cannot  be  corrected   by 

V.  Lebanon  M.  Co.,  3  Cal.  296.  an  amendment:  Brown  v.  Terre  Haute 

1  Ex  parte  Jones,  61  Ala.  399.  etc.  R.  R.  Co.,  72  Mo.  567. 

2  Miller  V.  Royce,  60  Ind.  189;  Mo-  «  Grimes  v.  Grosjean,  24  Neb.  700; 
dawell  V.  Hudson,  57  Ala.  75;  Sherry  Carlton  v.  Patterson,  29  N.  H.  580; 
V.  Priest,  57  Ala.  410;  Mitchell  v.  Burnham  v.  Chicago,  24  111.  496;  Hood 
Lincoln,  78  Ind.  5.1;  Alpers  v.  Scham-  v.  Spaith,  51  N.  J.  L.  129. 

mel,   75  Cal.  590;  Wall  v.  Covington,  '  Freeman  v.    Mears,    35   Ark.    278; 

83  N.  C.  144;  Tunstall  v.  Schoenpflug,  Shaul  v.  Duprey,  48  Ark.  331. 

4  Baxt.  43;  Hittson  v.   Davenport,  4  »  Henderson  v.  Banks,  70  Tex.  398; 

Col.    169;    Miller   v.    Royce,    60   Ind.  Crispen    v.    Hannovan,    86    Mo.    160; 

189.  Renfro  v.  Willis,  67  Ala.  488. 

^  Ex  parte  Jones,  61  Ala.  399.  »  Memphis  and  Charleston  R.  R.  Co. 

*  Wright   V.   McCampbell,    75  Tex.  v.  Whorley,  74  Ala.  264. 

644.  10  Evans  v.  Fisher,  26  Mo.  App.  541; 

"  Merrick  v.  Mayhue,  40  Mich.  196;  Bank  of  Ky.  v.  Wistar,  3  Pet.  432. 

Chandler  v.  Frost,   88  111.  559;  Smith  "  Morrison  v.  Stewart,  21  111.  App. 

V.  Redus,  9  Ala.  99;  44  Am.  Dec.  429;  11.3. 

Kenney  v.  Young,   25  Ala.   563;    Bar-  ''^  In  re  Mahon,  71  Cal.  536. 

ber  V.  Briscoe,  9  Mont.  341;  Shelly  v.  "  Hughes  v.  Hinds,  69  Ind.  93. 
JUDG.  L— 7 


§  72  AMENDING    JUDGMENTS.  98 

out  relief  from  the  appraisement  laws," '  or  correcting  a  de- 
scription of  land,^  or  the  writing  of  a  date,'^  or  changing 
the  amount  of  interest  allowed  from  six  to  ten  per  cent, 
and  waiving  the  benefit  of  appraisement  laws/  or  insert- 
ing in  a  decree  in  partition  the  instructions  as  to  the 
methods  of  making  partition  which  are  contained  in  the 
statute/  or  showing  how  and  to  whom  costs  were  to  be 
paid/  or  the  term  which  the  plaintiff  recovered  in  eject- 
ment/ Further  illustrations  are  needless.  In  whatever 
respect  the  clerk  may  have  erred  in  entering  judgment, 
the  court  may,  on  proper  evidence,  nullify  the  error  by 
making  the  judgment  entry  fully  and  correctly  express 
the  judgment  rendered.*  The  entry  may  also  be  amended 
to  show  that  the  recovery  w^as  for  or  against  a  party  in 
some  representative  capacity;  and  if  against  him  in  such 
capacity,  to  relieve  him  from  personal  liability  and  sub- 
ject him  to  the  liability  attaching  to  his  representative 
character  only.^  In  England  the  amendment  must  be 
authorized  by  some  matter  of  record.  Even  there  a  ver- 
dict was  amended  by  the  judge's  notes  and  the  affidavits 
of  the  jurors  who  rendered  it,'"  and  the  pos^ea,  after  a  lapse 
of  two  years,  by  the  judge's  notes/^ 

§  72.  Data  for. — In  the  United  States,  the  authorities 
showing  the  data  from  which  a  judgment  maj'-  be  amended 
are  contradictory.  Some  of  the  states  have  adopted  the 
English  practice;  but  a  majority  have  adopted  one  more 

1  Reily  v.  Burton,  71  Ind.  118.  land.  95  N.  C.  471;  Forbes  v.  Navra, 

»  Taylor  w.  Harwell,  65  Ala.  1.  63  Miss.    1;  Pollard  v.   King,  62  Ga. 

»  Smith  V.  Creditors,  59  Cal.  267.  lO.S;  Welch   v.   Keene,   8   Mont.  305; 

*  Conway  v.  Day,  92  Ind.  422.  Cowan  v.  Gentry,  32  S.  C.  369. 

"  Houston  V.  Blyfche,  71  Tex.  719.  «  Adams  v.    Re   Qua,  22   Fla.   250; 

6  Cole's  Will,  52  Wis.  591.  Beers  v.  Shannon,  73  N.  Y.  292;  Conn 

^  Alvey  V.  Gaboon,  86  Va.  173.  v.  Scruggs,  5  Baxt.  567;  Gay  v.  Cheney, 

8  People's   Bank    v.    McAuthor,    82  58  Ga.  .304;  Boykin  v.  Cook,  61  Ala. 

N.  C.   107;  Sweeny  v.  Delany,    1   Pa.  472;  Atkins  i\  Sawyer,   1   Pick.    351; 

St.   .320;  44  Am.  Dec.    136;  Portis  v.  11  Am.  Dec.  ISS;  Speed's  Ex'r  ?'.  Hann, 

Talbot,  32  Ark.  218;  Gates  r.  Bennett,  1   T.  B.    Mon.    16;    15   Am.   Dec.   78; 

33  Ark.  475;  Perry  v.  Adams,  S3  N.  C.  Huggins  v.  Oliver,  21  S.  C.  147;  Spig- 

266;    Evans  v.   Shafer,    86   Ind.    135;  ener  v.  Farquha--,  82  Ala.  569. 

Hartley  v.  White,  94  Pa.  St.  31;  Bean  '"  Coglan  v.  Elden,  1  Burr.  583. 

V.  Ayers,  70  Me.  421 ;  Carroll  v.  Thoinp-  ^^  Doe   v.    Perkins,    3    Term    Rep. 

tins,  14  S.  C.  223 j  Strickland  v.  S trick-  749. 


99  AMENDING    JUDGMENTS.  §  72 

liberal.  In  Mississippi  the  rule  of  the  English  cases  was 
understood  as  excluding  everything  not  a  part  of  the 
record.  On  that  ground  the  notes  of  the  judge  were 
deemed  to  be  as  incompetent  to  amend  the  record  by  as 
any  other  parol  evidence.^  In  Indiana  the  court  doubted 
whether  any  judge  could,  after  the  term,  amend  the  entry 
of  the  judgment  on  the  ground  that  it  did  not  express  his 
intention,  when  there  was  nothing  in  the  record  to  amend 
by.^  The  law  is  now  well  settled  in  Alabama,^  Georgia,* 
Kentucky,^  Indiana,®  Missouri,^  Mississippi,^  California,^ 
Nevada,"*  and  Iowa,"  in  conformity  to  the  rule  that  no 
record  can  be  amended  but  by  matter  of  record.  Un- 
doubtedly, as  in  cases  of  application  to  enter  judgment 
nunc  pro  tunc,  the  memoranda  of  the  presiding  judge  upon 
the  motion  docket,  and  his  written  opinions,  when  re- 
quired to  be  filed  in  the  case,  w^ould  generally  be  regarded 
as  parts  of  the  record.^^  In  Wisconsin  an  amendatory 
order  based  upon  the  personal  recollection  of  the  judge, 
and  conforming  the  judgment  to  that  recollection,  was 
sustained  upon  appeal.'^  In  many  of  the  states  the  prac- 
tice has  grown  up  of  making  a  proposed  amendment  the 
subject  of  a  petition  and  motion.  The  party  applying  is 
required  to  set  forth  the  respect  in  which  the  record  is 
defective,  and  to  suggest  the  amendment  with  which  he 
proposes  to  cure  the  defect.     Notice  of  the  motion  must 

1  Dickson   v.   Hoff,  3   How;  (Miss.)  v.  Clark,  18  Mo.  432;  State  i;.  Primm, 

165;    Boon   v.   Boon,    8    Smedes  &  M.  61  Mo.  166. 

318;  Rhoiles  v.  Sherrod,  8  Smedes  &         *  Moody   v.    Grant,    41    Miss.    565; 

M.    97;    Burney   v.    Royett,    1    How.  Rnssell  v.  McDougall,  3  Smedes  &  M. 

(Miss.)  39.  234;  Shackelford  v.  Levy,  63  Miss.  125. 

■■^  Boyd  V.  Blaisdell,  15  Ind.  73.  »  Morrison  v.   Dapman,   3  Cal.   255; 

^  Suminersett        v.        Summersett's  Branger  tJ.  Chevalier,  9  Cal.  172;  Swain 

Adm'r,  40  Ala.  596;  91  Am.  Dec.  494;  v.    Naglee,    19   Cal.    127;    Hegeler  v. 

Kemp  V.  Lyon,  76  Ala.  212.  Henckell,  27  Cal.  491;   De  Castro  v. 

*  Pitman  v.  Lowe,  24  Ga.  429;  Dixon  Richardson,  25  Cal.  49. 

V.  Mason,  68  Ga.  478.  "  Solomon  v.  Fuller,  14  Nev.  6.^ 

*  Finnell  v.  Jones,  7  Bush,  3"9;  Ben-         "  Giddings    v.    Giddiugs,   70   Iowa, 
nett  V.  Tiernay,  78  Ky.  580;  Stephens     486. 

V.  Wilson,  14  B.  Mon.  88.  '^  Gillett  v.  Booth,  95  111.  183;  Snlli- 

«  Makepeace  v.  Lukens,  27  Ind.  435;  van  S;iv.  Inst.  r.  Clark,  12  Neb.  578. 

92  Am.  Dec.  263;  Williams  v.  Hender-  ^^  Wyman  v.  Buckstaff,  24  Wis.  477. 

son,  90  Ind.  577.  Contra,  State  v.  Smith,  1  Nott  &  McC. 

'  Saxton  V.  Smith,  50  Mo.  490;  State  16. 


§  72  AMENDING    JUDGMENTS.  100 

be  given  to  the  adverse  party,  and  an  opportunity  allowed 
him  to  appear  and  make  a  contest.^  At  the  hearing,  such 
evidence  is  received  as  would  be  competent  in  any  other 
investigation.  This  practice  is  adopted  either  by  express 
decisions  or  by  tacit  acquiescence  in  Massachusetts,'^  New 
Hampshire,'  Maine,^  Connecticut,^  Ohio,®  Illinois,^  Arkan- 
sas,* lowa,^  and  North  Carolina,^"  and  is  sanctioned  by  the 
supreme  court  of  the  United  States."  It  is  further  recom- 
mended by  its  justness  and  its  liberality.  "  The  doctrine 
in  this  country,  in  reference  to  amendments  of  records, 
may  be  said  to  have  crystallized  into  the  following  legal 
propositions,  namely:  That  any  error  or  defect  in  a  record 
which  occurs  through  the  act  or  omission  of  the  clerk  of 
the  court  in  entering,  or  failing  to  enter  of  record,  its 
judgments  or  proceedings,  and  is  not  an  error  in  the  ex- 
press judgment  pronounced  by  the  court  in  the  exercise  of 
its  judicial  discretion,  is  a  mere  clerical  error,  and  amend- 
able, no  matter  in  how  important  a  part  of  the  record  it 
may  be;  and  when  the  error  or  defect  is  in  respect  to  the 
entry  of  some  judgment,  order,  decree,  or  proceeding,  to 
which  one  of  the  parties  in  the  cause  was  of  right  entitled, 
and,  as  a  matter  of  course,  according  to  law  and  estab- 
lished practice  of  the  court,  it  will  sometimes  be  presumed 
to  have  occurred  through  the  misprision  of  the  clerk,  and 
will  always  be  amendable  if  from  other  parts  of  the  record, 
or  from  other  convincing  and  satisfactory  proofs,  it  can 
be  clearly  ascertained  what  judgment,  order,  or  decree  the 
party  was  entitled  to."^^ 

The  law  in  relation  to  amendments,  as  stated  by  Lord 

iWeed    V.    Weed,    25    Conn.    337;  «  Hollister  v.  Judges,  8  Ohio  St.  201; 

Means  v.  Means,  42  III.  50;  Alexander  70  Am.  Dec.  100. 

V.  Stewart,  23  Ark.  18;  Hill  v.  Hoover,  '  Forquer  v.  Forquer,  19  III.  68. 

5  Wis.  386;  68  Am.  Dec.  70.  ^  Arrington  v.  Conrey,  17  Ark.  100; 

"  Clark   V.    Lamb,  8    Pick.  415;    19  King  v.  State  Bank,  9  Ark.  188. 

Am.  Dec.  332;  Rugg  v.  Parker,  7  Gray,  ^  Stoc»kdale  v.  Johnson,  14  Iowa,  178. 

172.  10  Calloway  v.   McKeithen,  5   Ired. 

*  Frink  v.   Frink,  43  N.   H.  508;  80  12;  42  Am.  Dec.  153;  State  v.  King,  5 
Am.  Dec.  189.  Ired.  203. 

*  Inhabitants  of   Limerick,  18   Me.  "  Matheson's      Adm'r     v.     Grant's 
183.  Adm'r,  2  How.  263. 

*  Weed  V.  Weed,  25  Coan.  337.  "  Doaue  v.  Glenn,  1  Col.  45G. 


101  AMENDING    JUDGMENTS.  §  72 

Coke,  and  as  it  undoubtedly  existed  until  long  after  his 
time,  was  too  harsh  to  successfully  resist  the  march  of 
legal  reform,  even  in  conservative  England.  As  modified 
in  that  country,  it  is  still  too  inconsistent  with  a  liberal 
administration  of  the  law  to  escape  total  overthrow  in  this 
country.  The  proposition  that  "  the  power  to  amend  a 
record "  is  confined  to  cases  where  the  record  discloses 
that  the  entry  "  does  not  correctly  give  what  was  the 
judgment  of  the  court"  implies  that  ministerial  authority 
is  more  sacred  than  judicial  authority.  This  proposition 
is  sustained  by  the  averment  that  a  record  is  of  "  uncon- 
trollable verity."  This  verity  is  sufficiently  respected 
when  it  is  allowed  to  protect  records  from  collateral 
assault;  it  is  unduly  indulged  if  it  operate  to  the  exclusion 
of  truth,  in  every  form  and  on  every  occasion.  The  ob- 
ject in  every  litigation  is  to  obtain  from  some  court  a  final 
determination  of  the  rights  of  the  parties.  That  deter- 
mination is  invariably  what  the  judges  direct,  and  not 
invariably  what  the  clerks  record.  The  power  of  the 
court  to  make  the  record  express  the  judgment  of  the 
court  with  the  utmost  accuracy  ought  not  to  be  restricted. 
Upon  any  suggestion  of  error,  the  court  ought  to  be  at 
liberty  to  ascertain  the  existence  or  non-existence  of  the 
alleged  error,  by  any  satisfactory  evidence,  and  this  rule 
prevails  in  some  jurisdictions.^  The  record  is  made  up 
in  some  cases  after  the  term,  and  thus  the  opportunity  of 
asking  for  corrections  while  it  is  still  in  the  breast  of  the 
judge  is  never  presented.  In  most  cases  the  clerk  acts 
from  his  recollection  of  what  was  done  and  said,  as  well 
as  from  loose,  imperfect  memoranda.  AVh}^,  then,  should 
the  accuracy  of  his  memory  not  be  tested  by  the  memory 
of  other  persons  then  present,  and  more  especially  by  that 
of  the  judges,  whom  he  may  have  imperfectly  understood? 
Why  may  not  the  trial  of  an  issue  as  to  the  correctness  of 
a  written  memorial  be  brought  to  a  more  just  and  satis- 

1  In  re  Wight,  134  U.  S.  136;  Fay  v.  Wenzell,  8  Cush.  315;  Rugg  v.  Parker, 
7  Gray,  172. 


§  72  a  AMENDING    JUDGMENTS.  102 

factory  conclusion  by  hearing  all  the  proofs  ofTered  by 
both  parties,  tending  to  throw  any  light  upon  the  contro- 
versy, than  by  confining  the  investigation  to  a  mere  in- 
spection of  such  evidence  as  happens  to  be  on  or  among 
the  records  in  the  case,  —  these  records  all  confessedly 
liable  to  the  same  errors  and  omissions  as  the  one  sought 
to  be  reformed?  Some  of  the  courts  profess  to  acquire 
their  correctory  power  over  their  records  solely  by  virtue 
of  the  English  statutes  of  amendments  and  jeofails,^  while 
others  insist  that  it  has  a  higher  source  and  a  wider  ap- 
plication, and  exists  by  virtue  of  high  equity  powers  re- 
siding in  the  court  and  enabling  it  to  compel  its  records 
to  speak  the  truth.'^ 

§  72  a.  Notice  of  Application.  —  Upon  application  to 
amend  entries  of  judgments,  the  courts  will  not  act  ex 
parte,  where  it  is  not  to  be  determined  from  a  mere  in- 
spection of  the  record.^  But  if  the  amendment  is  to  be 
made  from  the  record  alone,  and  the  judgment,  as  pro- 
posed to  be  amended,  is  not  different  from  what  it  would 
have  been  construed  to  be,  independent  of  the  amend- 
ment, notice  is  unnecessary.  "  No  one's  rights  are  affected 
by  it,  as  the  effect  of  the  record  is  not  changed.  All  who 
may  have  consulted  the  record,  or  acted  upon  the  faith  of 
it,  must  be  presumed  to  have  notice  of  all  which  the  proper 
construction  of  the  whole  record  discloses;  in  other  words, 
of  the  effect  of  the  record."  *  While,  as  we  have  stated, 
courts,  when  applications  to  correct  their  records  are  made, 
ordinarily  require  notice  to  be  given  parties  whose  inter- 
ests may  be  affected,  and  thus  afford  them  an  opportunity  to 
be  heard  in  opposition  to  the  amendment,  we  do  not  wish 
to  be  understood  as  asserting  that  the  power  of  the  court 
to  act  is  dependent  on  such  notice  or  hearing.     Every 

1  Makepeaces.  Lukens,  27  Ind.  435;  Conn.  315;  McNairy  v.  Castleberry,  6 
92  Am.  Dec.  263.  Tex.    286;    Rockland    Water    Co.     v. 

2  King  V.  State.  9  Ark.  188.  PiUsbury,  66  Me.  427;  People  v.  Mc- 
^Wallis    V.     Thomas,    7    Ves.    292;     Cutchen,  40  Mich.  244. 

Radenhurst    v.    Reynolds,    11    Grant         *  Emery  i;.  Whitwell,  6  Mich.  491. 
(U.    C.)  521;   Wooster   v.    Glover,  37 


103  AMENDING    JUDGMENTS.  §  73 

court,  as  suggested  in  the  previous  chapter,  has  the  right 
to  make  its  records  speak  the  truth,  and  may  upon  proper 
occasions,  either  upon  its  own  motion  or  the  motion  of  any 
party  interested,  whether  upon  or  without  notice  to  the 
parties  to  the  action,  correct  its  records  until  they  con- 
tain a  true  history  of  its  transactions/  If,  however,  an 
amendment  is  made  to  a  judgment  or  decree  in  a  matter 
of  substance,  whereby  it  is  made  to  grant  relief  different 
from  that  granted  when  it  was  rendered,  it  is  absolutely 
void  as  against  a  party  having  no  notice  of  the  applica- 
tion to  thus  amend  it.^ 

§  73.  Time  within  Which  Amendments  may  be  Made. — 
The  time  within  which  an  amendment  of  the  entry  of  a 
judgment,  order,  or  decree  may  be  made  has  no  limit.  The 
laches  of  a  party  making  an  application  for  any  kind  of 
equitable  relief  may  always  be  taken  into  consideration, 
and  may  sometimes  afford  a  sufficient  ground  for  denying 
him  that  which  would  have  been  yielded  to  his  more 
prompt  request,  and  this  is  true  of  applications  to  correct 
clerical  defects  in  the  entry  of  judgments  or  decrees;  and 
in  one  instance  a  court  of  chancery  refused  to  correct  a 
mistake  in  the  entry  of  a  decree  because  the  applicant 
had  not  moved  until  more  than  a  year  after  his  attention 
was  called  to  the  alleged  error.'  Delay  in  seeking  the 
correction  of  a  record  is  not  of  itself,  we  apprehend,  ever 
a  sufficient  reason  for  refusing  relief.  "It  is  never  too 
late  to  amend  the  record  merely  for  the  purpose  of  cor- 
recting a  misprision  of  the  clerk."  *  The  general  language 
of  the  authorities  upon  this  subject  is,  that  a  record  may 
be  corrected   at   any  time."     Therefore,  the  power  of  a 

1  Fay  V.  Wenzell,  8  Cnsh.  315;  Peti-  Lewis  v.  Ross,  37  Me.    230;   59  Am. 

tion  of 'inhabs.  of  Limerick.  18  Me.  183.  Dec.  49;  Crim  v.  Kessing,  89  Cal.  478; 

^  Swift  V.  Allen,  55  111.  303.  Galloway  v.    McKeethen,   5  Irerl.    12; 

'lingers  v.  Rogers,  1  Paige,  188.  13  Am.   Dec.    153;  Walton  v.   Peison, 

*  Maus  V.  Maus,  5  Watts,  319;  Cohn  85  N.  C.   34;  Rickman  v.   Ricknian,  6 

V.  Scheuer,  115  Pa.  St.  178;  Smaltz  v.  Lea,  483;  Douglass  v.  Keelin,  78  Ind. 

Hancock,  118  Pa.  St.  550.  199;  Vhellv  v.    Smith,    50   Iowa.    543; 

^  Sidener  v.    Coons,    83    Ind.     183;  White  v.  Blake,   74  Me.  489;  Nabers 

Dunham   v.  South   Park,    87   111.  185;  v.    Meredith,    67    Ala.    .333;    Seiler   v. 

McClure    v.    Brack,    43    Minn.     305;  Kentucky  Northern  Bank,  8ti  Ky.  125; 


§  74  AMENDING    JUDGMENTS.  104 

court  retaining  a  recr>rd  to  amend  it  is  not  impaired  by 
the  fact  that  an  appeal  has  been  taken/  and  has  resulted 
in  an  affirmance  of  the  judgment.^ 

§  74.  Effect  of  Amendments.  —  The  observations  in 
the  preceding  chapter,  upon  the  effect  of  the  entry  of 
judgments  nunc  pro  tunc  as  of  the  date  of  their  rendition 
are  equally  applicable  where  such  entry  is  not  of  a  whole 
judgment,  but  is  only  a  partial  modification  of  it.  When 
the  entry  is  amended  it  is  merely  perfected  evidence  of 
what,  in  contemplation  of  law,  existed  from  the  time 
judgment  was  pronounced,  and  for  most  purposes  the 
judgment  will  be  given  effect  as  if  no  error  or  omission 
had  occurred  in  its  original  entry .^  All  persons  who 
were  not  parties  to  the  action,  and  who  have  acquired  in- 
terests based  upon  the  existing  state  of  the  record,  acting 
in  good  faith,  and  being  purchasers  for  valuable  consid- 
erations, without  notice,  actual  or  implied,  of  the  exist- 
ence of  the  matters,  evidence  of  which  has  been  supplied 
by  the  amendment,  are  not  prejudiced  thereby,^  unless 
they  have  been  accorded  a  hearing  and  the  court  has  de- 
termined that  they  have  no  such  equities  as  entitle  them 
to  be  exonerated  from  the  effect  of  the  amendment.^ 
Generally,  the  effect  of  an  amendment  of  a  judgment  or 
execution  is  to  support  proceedings  already  taken  under 

Pollard  V.  King,  62  Ga.  103;  Brooks  v.  Dreyfus    v.    Tompkins,    67   Cal.    339; 

Stephens,    100  N.   C.  297;  Sanders  v.  Conway  v.  Day,  79  Ind.  318.     Contra, 

Williams.  75  Ga.  283;  Ecker  v.  New  Werborn  v.  Pinnev,  76  Ala.  291. 

Windsor  Bank,  64  Md.  292;  Ex  parte  ^  ^dams    v.    Wiggins,    23   Fla.    13; 

Henderson,  84  Ala.  36.  Griffiths   v.   Sears,    112   Pa.   St.    523; 

1  Exchange  Bank  v.  Allen,  68  Mo.  King  v.  Burnham,  129  Mass.  598. 
474;  Freel  v.  State,  21  Ark.  226;  Dow  *  Auerbach  v.  Gieske,  40  Minn.  258; 
V.  Whitman,  36  Ala.  604;  Attorney.  Duffey  v.  Houtz,  105  Pa.  St.  96;  Col- 
General  V.  White,  Biinb.  283;  Rew  v.  man  v.  Watson,  54  Ind.  65;  Indiana 
Barker,  2  Cow.  40S;  14  Am.  Dec.  515,  B.  &  W.  R'y  Co.  v.  Bird,  116  lud. 
and  note;  Richardson  v.  Mellish,  3  217;  9  Am.  St.  Rep.  842;  Kemp  v. 
Bmg.  346;  11  Moore,  119;  7  Barn.  &  Cook,  18  Md.  130;  79  Am.  Dec.  681; 
C.  819;  LadieaS.  M.  Co.  v.  Smith,  78  McCormick  v.  Wheeler,  36  111.  114; 
Ala.  108;  Exchange  Bank  v.  Allen,  68  84  Am.  Dec.  ,388;  Legon's  Adm'r  v. 
Mo.  474;  Bmns  v.  State,  .35  Ark.  118;  Rogers,  12  Ga.  281;  Perdue  v.  Brad- 
Sparrow  V.  Strong,  2  Nev.  362;  Sey-  shaw,  18  Ga.  287. 
mour  V.  Thomas,  81  Ala.  250.  ^  Remick  v.   Butterfield,  31    N,  H. 

» Roussett    V.    Boyle,   45    Cal.    64;  70;  64  Am.  Dec.  316. 


105  AMENDING    JUDGMENTS.  §  74  a 

it.*  In  Texas,  however,  this  result  does  not  follow;  and 
if  a  sale  has  taken  place  under  a  judgment,  its  subsequent 
amendment  will  not  aid  the  purchaser.^  An  amendment 
having  been  directed  by  the  court,  its  action  cannot  be 
reviewed  or  avoided  collaterally.^  Upon  an  order  being 
made  to  amend  a  judgment,  it  should  be  carried  out,  either 
by  the  erasure  or  interlineation  of  the  original  entry,  until 
it  correctly  expresses  the  judgment  rendered,  or  by  the 
vacation  of  such  entry  and  making  a  new  entry  nunc  pro 
tunc  of  the  judgment  which  the  court  finds  was  the  one 
actually  rendered  in  the  first  instance.* 

§  74  a.  Discretion  of  the  Court.  —  The  expression  fre- 
quently occurs  in  the  decisions  that  a  court  exercises  a 
discretionary  power  or  authority  in  amending  or  refusing 
to  amend  its  records,  and  that  its  action  will  not  be  re- 
viewed in  the  appellate  courts.^  These  expressions  are 
probably  misleading.  In  determining  questions  of  fact, 
the  action  of  trial  courts  is  usually  conclusive,  and  the 
higher  courts  rarely  interfere  with  a  verdict  or  decision 
supported  by  any  competent  evidence.  If  there  is  a  rea- 
sonable doubt,  upon  the  evidence,  whether  a  judgment 
entry  ought  to  be  amended  or  not,  the  action  of  the  court 
whose  record  it  is  in  allowing  or  refusing  the  amendment, 
like  its  decision  of  any  other  question  of  fact  respecting 
which  the  evidence  is  conflicting,  is  finah  But  surely  it 
is  not  true  that  a  court  has  an  arbitrary  discretion  to 
amend  or  to  refuse  to  amend  its  records.  Every  litigant 
must  necessarily,  unless  he  has  forfeited  it  in  some  man- 
ner, have  the  right  to  have  the  final  judgment  and  all 
other  proceedings  in  the  action  correctly  entered,  and 
when  correctly  entered,  to  have  such   entry  remain  un- 

1  Freeman  on  Executions,  sec.  71  a.  *  Jones  v.  Lewis,  8  Irerl.  70;  47  Am. 

«  Morris  v.    Balkham,   75  Tex.    Ill;  Dec.   .330;  McDowell  v.  McDowell,  92 

16  Am.  St.  Rep.   874;  McKav  v.  Paris  N.  C.  227;  King  v.  State  Bank,  9  Ark. 

Excli.  Bank,  75  Tex.  181;  16  Am.  St.  185;  47  Am.  Dec.  739. 

Rep.  884.  "  Blown  v.   McCune,  5  Sandf.  224; 

»  HainiltoD  v.  Seitz,  25  Pa.  St.  226;  Austin  v.  Jordan,  5  Tex.  130;  Colin  v. 

64  Am.  Dec.  694.  Scheuer,  115  Pa.  St.  178. 


§  74  a  AMENDING    JUDGMENTS.  106 

altered;  and  any  action  of  the  court  impairing  or  denjdng 
this  right  should  be  subject  to  correction  by  appeal  or  by 
some  other  revisory  proceeding;  and  that  it  is  so  subject 
is  attested  by  the  numerous  decisions  cited  in  this  and 
the  preceding  chapter,  all  of  which  should  be  regarded  as 
mere  impertinences  of  the  appellate  courts,  if  the  dis- 
cretion of  the  lower  courts  is  not  a  legal  discretion  to  be 
exercised  in  conformity  to  well-settled  principles  of  law. 


107  THE    RECORD,  OR    JUDGMENT    ROLL.  §  75 

CHAPTER  V. 

THE  RECORD,    OR  JUDGMENT  ROLL. 

§  75.  Origin. 

§  76.  Verity. 

§  77.  The  postea.  ' 

§  78.  What  constitutes  the  roll. 

§  79.  What  does  not. 

§  80.  Provisions  of  the  codes. 

§  81.  Construction  of  the  code  provisions. 

§  82.  la  California  and  Nevada. 

§  83.  Construction  in  California. 

§84.  Interlocutory  judgments. 

§  85.  New^  trial  has  record  of  its  own. 

§  86.  States  where  no  record  is  made  up. 

§  87.  Want  of,  does  not  affect  judgments. 

§  88.  In  chancery. 

§  89.  Replacing  lost  rolls. 

§  89  a.     Chancery  cannot  replace. 

§  89  b.     Supplying  omissions  in  the  record. 

§  75.  Origin.  —  The  judgment  roll,  or  record,  is  so  in- 
separably connected  with  the  judgment  itself  as  to  require 
some  notice  in  this  work.  In  the  primitive  stages  of  our 
common  law  the  pleadings  were  oral.  The  litigants 
appeared  in  court,  and  there  carried  on  their  legal  alterca- 
tions, the  plaintiff  stating  the  grounds  which,  in  his  opin- 
ion, entitled  him  to  the  interposition  of  the  court;  and 
the  defendant  resisting  those  statements,  by  denying 
either  their  sufficiency  in  law  or  their  truthfulness,  or  by 
showing  some  fact  depriving  them  of  their  ordinary  force 
and  effect.  The  process  of  statement  and  counter-state- 
ment continued  until  the  court  understood  the  point  of 
difference,  or  in  other  words,  until  an  issue  was  formed. 
During  all  this  time  an  officer  of  the  court  was  in  attend- 
ance charged  with  the  duty  of  making  brief  memoranda 
of  the  respective  allegations  of  the  parties  and  of  the  acts 
of  the  court  upon  a  roll  of  parchment.  Parchment  was 
so  early  and  so  constantly  used  for  this  purpose  that  it 
came  to  be   regarded  as   an  essential  and   indispensable 


§§  76,  77        THE    RECORD,  OR   JUDGMENT   ROLL.  108 

part  of  the  record.  The  manner  and  time  in  which  the 
record  was  made  up  occasioned  the  use  of  words  of  the 
present  tense,  as  the  "plaintiff  complains"  and  "brings 
suit,"  the  defendant  "comes  and  defends"  and  "prays 
judgment,"  "the  jury  come  and  say,"  and  "the  judgment 
of  the  court  is,  that  it  is  considered."  These  words  con- 
tinued in  use  when  }Sj  more  modern  practice  the  record 
became  a  subsequent  instead  of  a  contemporaneous  me- 
morial. 

§  76.  Verity. — The  record  was  kept  in  formal  language, 
with  great  care  and  precision.  Its  formality  and  precision, 
together  with  its  contemporaneous  character,  gave  it  great 
authenticity.  It  became  exclusively  admissible  evidence 
of  the  matter  properly  included  in  it,  and  of  such  "un- 
controllable credit  and  verity  as  to  admit  of  no  averment, 
plea,  or  proof  to  the  contrary."  ^  It  became  a  mark  of 
distinction  to  the  class  of  courts  in  w^hich  it  could  be  kept, 
and  furnished  the  basis  for  a  line  of  decisions  which 
enhanced  the  dignity  and  importance  of  courts  of  record, 
and  gave  to  their  judgments  and  proceedings  a, 'prima  facie 
credit  and  respect  never  accorded  to  those  of  courts  not  of 
record.  The  verity  of  a  record  applies  to  its  date,  and 
therefore  evidence  is  not  admissible  to  show  that  the  date 
of  the  judgment  as  it  appears  in  the  judgment-book  and 
docket  is  incorrect.^ 

§  77.  The  Postea. — After  the  pleadings  were  written 
instead  of  oral,  the  record  was  continued.  If  an  issue  of 
fact  was  made  by  the  pleadings,  it  was  referred  to  some 
appropriate  method  of  trial.  The  record  was  then  made 
up,  consisting  of  the  placita,  brief  statement  of  the  nature 
of  the  action,  a  transcript  of  the  allegations  of  facts,  time 
of  appearance,  the  various  acts  of  the  court,  and  the 
award  of  trial.     Fifty-three    cases  were  brought   to    the 

»Adams«.Betz,  1  Watts,  425;  2(i  Am.         "  pgrgugon    v.    JLumler,    25    Minn. 
Dec.  79;  Buck  v.  Holt,  74  Iowa,  294;     183. 
Winchester  v.  Thayer,  129  Mass.  129. 


109  THE    RECORD,  OR    JUDGMENT    ROLL.  §  78 

supreme  court  of  Illinois  at  one  term,  all  of  which  were 
considered  as  liable  to  reversal,  for  containing  no  placita. 
This  deficiency,  it  w^as  held,  could  not  be  supplied  by- 
reference  to  bills  of  exceptions  appearing  in  the  record; 
because,  without  the  placita,  there  was  nothing  to  show 
any  authority  in  the  court  to  render  judgment  nor  to 
make  a  bill  of  exceptions.^  The  history  of  the  case  after 
this  is  called  the  postea.  It  shows  the  day  of  trial,  before 
whom  the  trial  took  place,  the  appearance  or  default,  the 
summoning  and  the  choice  of  the  jury,  and  their  verdict. 
The  record  was  made  compact  and  continuous  by  "con- 
tinuances," or  entries  of  the  adjournment  of  the  cause 
from  time  to  time,  by  which  the  parties  were  temporarily 
dismissed  and  a  day  fixed  for  their  subsequent  appearance. 
After  the  return  of  the  record  with  its  postea,  the  case 
being  ready  for  judgment,  the  allowance  of  the  proper 
ojSicer  may  be  obtained,  expressing  generally  that  judg- 
ment is  given  and  in  whose  favor.  This  is  called  "sign- 
ing judgment,"  The  next  step  is  to  put  the  judgment  on 
record.  If  no  trial  has  been  had,  a  record  is  now  made 
up  for  the  first  time.  But  if  trial  has  been  had,  the  whole 
proceedings,  though  already  made  up,  are  again  entered 
on  a  roll  of  parchment.  This  proceeding  is  "  entering  the 
judgment."  Though  nominally  the  act  of  the  court,  the 
duty  of  seeing  it  done  in  proper  form  devolves  upon 
the  prevailing  party.  This  last  roll  is  deposited  in  the 
treasury  of  the  court,  and  is  known  as  the  "judgment 
roll,"  and  is  also  frequently  styled  "the  record." ^ 

§  78.  Of  What  Composed. — The  verity  conceded  to  the 
judgment  roll  applies  to  nothing  which  it  is  not  the  duty 
of  the  clerk  to  record.*  Nothing  can  be  made  a  matter  of 
record  by  calling  it  by  that  name,  nor  by  inserting  it 

1  P,  M.  L.    Co.  V.  Chicago,   56   III.  386,  387;  Co.  Lit.  60  a;  Burrill's  Law 

3Q4  Diet,    and   Bouvier's   Law    Diet.,  tit. 

^  In    relation    to    the    matters    con-  Record, 

tained  in  the  three  preceding  sections,  ^  Douglas    v.    Wickwire,    19    Conn. 

consult    Stephen's    Pleading,   25,    111;  489;    Hahn  v.    Kelly,   by  Sawyer,    J.; 

Burrill's  Practice,  12,  16;  3  Bla.  Com.  34  Cal.  391;  9i  Am.  Dec.  742. 


§  78        THE  RECORD,  OR  JUDGMENT  ROLL.         110 

among  the   proper   matters    of  record.'     It   is    therefore 
exceedingly  important  to  understand  what  is  or  is  not  a 
part  of  the  judgment  roll;  what  imports  absolute  verity; 
what  will  be  considered  in  proceedings  in  the  nature  of 
writs  of  error;  and  precisely  what  has  authority  to  speak 
for  or  against  the  judgment  in  a  collateral  proceeding. 
While  the  record  is,  in  general  terms,  a  history  of  the 
proceedings,  many  things  done  in  the  progress  of  a  case 
are  not  necessarily  nor  ordinarily  matters  of  record.     It 
is  to  be  regretted  that  the  courts  have  been  contented  with 
peremptorily  excluding  many  papers  claimed  to  be  parts 
of  the  record,  but  have  rarely  attempted  to  specify  or  de- 
scribe those  matters  which  possess  an  indefeasible  claim 
to  a  place  in  the  judgment  roll.     In  Virginia  the  question, 
What  is  a  common-law  record?  was  answered  thus:  "  It  is 
the  writ  for  the  purpose  of  amending  by,  if  necessary,"  all 
the  pleadings,  **  papers  of  which  profert  is  made  or  oyer 
demanded,"  papers  submitted  to  the  court  by  bills' of  ex- 
ceptions, demurrers  to  evidence,  or  special  verdict,  and 
such  papers  as  are  inseparably  connected  with  those  so 
submitted,  and  the  several  proceedings  at  the  rules  or  in 
court  until  the  rendition  of  the  judgment.     These,  and  no 
other,  are  to  be  noticed  by  the  court.^     In  the  case  of 
papers  of  which  oyer  is  demanded,  the  rule  laid  down 
above  must  be  limited  to  those  instances  where  the  record 
shows  oyer  to  have  been  granted  by  the  court  or  conceded 
by  the  party .^     And  the  instrument  will  become  part  of 
the  record  if  oyer  be  granted  or  conceded,  though  it  be 
unsealed,  and  therefore  not  a  paper  of  which  oyer  can  be 
properly  demanded.^     Oyer  of  an  instrument  does  not  in- 
clude oyer  of  an  alleged  assignment,  nor  will  it  make  such 
assignment  matter  of  record.^     The  writ  or  summons  is 

1  Nichols   V.    Bridgeport,   27   Conn.  »  Cummins  v.  Woorlruff,  5  Pike,  116; 

459;  Kitchens  v.  Hut°chins,  44  Ga.  620;  Clark  v.  Gibson,  2  Pike,  109;  Hanly  v. 

Al.bot  V.   Hachman,   2    Smedes  &  M.  Real  Estate  Bank,  4  Pike,  598. 

510;   Treat   v.    Maxwell,   82   Me.    76;  *  Russell     v.    Drummond,    6     Ind. 

Simmons  v.  Harris,  7  Baxt.  204.  216. 

*  MaudeviUe  v.  Perry,  6  Call,  78.  ^  Crary  v.  Ashley,  4  Pike,  203. 


Ill  THE    RECORD,  OR    JUDGMENT    ROLL.  §  79 

probably  a  part  of  the  judgraent  roll/  but  on  this  subject 
the  authorities  disagree.^ 

§  79.  Matters  not  of  Record.  —  No  general  definition 
has  been  attempted  by  which  to  determine  what  are  not 
matters  of  record.  In  one  case  the  rule  is  stated  as  with- 
out exception  that  "  no  act  in  pais  of  any  party  to  a  suit 
can  be  made  any  part  of  the  record  except  by  bill  of 
exceptions."  *  In  another  case,  "  all  intermediate  pro- 
ceedings of  an  informal,  collateral,  and,  so  to  speak,  acci- 
dental and  uncertain,  character,  not  involving  directly  the 
merits  of  the  case,  but  rather  appertaining  to  modes  of 
proceeding,"  are  specified  as  forming  no  part  of  the  judg- 
ment roll.*  Among  the  matters  which  are  not  (unless 
made  so  by  bill  of  exceptions  or  by  consent,  or  by  order 
of  court)  matters  of  record  are  all  matters  of  evidence, 
written  or  oral,^  including  note,*  bond,'  or  mortgage®  filed 
in  the  case,  and  upon  which  suit  is  brought;  an  agreed 
statement  of  facts*  not  in  nature  of  special  verdict;  all 
motions,^"  including  motions  to  quash  the  writ,"  to  amend 
the  pleadings,  for  extensions  of  time,  for  continuances,  for 
bonds,  for  prosecution,  for  bills  of  particulars;''^  pleas 
stricken  from  the  files ;'^  notices  of  motions;"  affidavits  of 
claimants;'^  bonds  for  trial  of  rights  of  property;'®  affidavits 
in  relation  to  conduct  of  jurors ;''  all  affidavits  taken  during 

'  Montgomery  v.  Carpenter,  5  Pike,  '  Cromie   v.  Van  Nortwick,  56  HI. 

264;  Kibble  v.  Butler.  U  Sinedes&  M.  353. 

207.     Pleadings  and  process  are  indis-  ^  Kirby  v.  Wood,  16  Me.  81. 

pensable  jjarts  of   the  judgment  roll:  »  Bank  of  Va.  v.  Bank  of  Chillicothe, 

Vad  V.  Iglehart,  69  111.  332;  Stevisoa  16  Ohio,  170. 

V.  Earnest,  80  111.  513.  "  United  States  v.  Gamble,  10  Mo, 

2  Childs  V.  Risk.  1  Morris,  439;  Hays  457;   Abbee  v.  Higgins,  2  Iowa,  535; 
V.  McKee,  2  Blackf.  11.  Christy's  Adm'r  v.  Myers,  21  Mo.  112. 

3  Kibble  V.  Butler,  14  Smedes  &  M.  i'  Hinton  v.  Brown,  1  Blackf.  429. 
207.  "^  Nichols   v.  Bridgeport,  27    Conn. 

*  Nichols  V.  City  of  Bridgeport,  27  459. 

Conn.  459.  "  Walker   v.   Wills,    5    Pike,     166; 

»  Lovell  V.  Kelley,  43  Me.  263;  Cun-  Kelly  v.  Matthews,  5  Pike,  223;  Chris- 

D'ngham   v.    Mitchell,    4    Kand.    189;  man  v.  Melne,  6  Iiid.  487. 

Clark  r.  Gibson,  2  Pike,    109;  Cole  v,  '*  Rich  v.  Hathaway,  18  III.  548. 

Driskell,  1  Blackf.  17.  '^  Kibble  v.  Butler,  14  Smedes  &  M. 

s.Starbird   v.    Eaton,    42    Me.    5G9;  207. 

Storer  v.  White,  7  Mass.  448;  Pierce  v.  »«  Kirksey  v.  Bates,  1  Ala.  303. 

Adams,  8  Mass.  383.  "  Mauu  v.  Russell,  11  ill.  586. 


§  80  THE    RECORD,  OR    JUDGMENT    ROLL.  112 

tlie  progress  of  the  cause;'  memorandum  of  costs;'^  power 
of  attorney  to  confess  the  judgment,  and  affidavit  in  rela- 
tion to  the  death  of  the  maker  thereof;^  report  of  judge  of 
proceedings  at  the  trial,  reasons  for  his  opinion  in  render- 
ing judgment  or  in  deciding  application  for  a  new  trial;'* 
rulings  of  the  court  upon  the  admission  of  evidence;  the 
instructions  to  the  jury;  statement  of  facts  made  by  the 
judge  for  the  purpose  of  taking  the  advice  of  the  appellate 
court;''  and  a  ruling  of  the  court  upon  an  application  to 
strike  out  a  portion  of  the  pleadings.® 

§  80.  Statutes.  —  In  several  ot  the  states  the  matters 
constituting  the  judgment  roll  are  specified  by  statute. 
In  most  cases,  however,  the  specification  is  sufficiently 
general  and  indistinct  to  create  a  necessitj^'  for  judicial 
construction.  In  New  York,  "the  clerk,  upon  entering 
final  judgment,  must  immediately  file  the  judgment  roll, 
which  must  consist,  except  where  special  provision  is 
otherwise  made  by  law,  of  the  following  papers:  The  sum- 
mons; the  pleadings,  or  copies  thereof;  the  final  judgment 
and  the  interlocutory  judgment,  if  any,  or  copies  thereof; 
and  each  paper  on  file,  or  a  copy  thereof,  and  a  copy  of 
each  order  which  in  any  way  involves  the  merits  or 
necessarily  affects  the  judgment.  If  judgment  is  taken 
by  default,  the  judgment  roll  must  also  contain  the  papers 
required  to  be  filed,  upon  so  taking  judgment,  or  upon 
making  application  therefor,  together  with  any  report, 
decision,  or  writ  of  inquiry  and  return  thereto.  If  judg- 
ment is  taken  after  a  trial,  the  judgment  roll  must  contain 
the  verdict,  report,  or  decision;  each  offer,  if  any,  made  as 
prescribed  in  this  act,  and  the  exceptions  or  case  then  on 
file."^  In  Wisconsin  the  following  papers  are  attached 
together    and   filed,    and    constitute    the    judgment   roll: 

1  Bluzzard  v.  Phebus,  35  Ind.  284.  *  Nichols  v.  City  of  Bridgeport,  27 

2  Valentine  v.  Norton,   30  Me.    194;     Conn.  459. 

McArthur  v.  Starrett,  43  Me.  345.  «  Feely    v.     Shirley,    43    Cal.     369; 

3  Hodges   V.    Ashurst,    2  Ala.    301;     ISIoore   v.  De  Valle,  28  Cal.    174;   A. 
Magher  v.  Howe,  12  111.  379.  Nev.  &  S.  Canal  Co.  v.  Kidd,  43  Cal. 

*  Coolidge   V.   Inglee,   13    Mass.    50;     181. 
Cathcart  v.  Commonwealth,  37  Pa.  St.         '  N.  Y.  Code  Civ.  Proc,  sec.  1237. 
108. 


113  THE    RECORD,  OR    JUDGMENT    ROLL.  §  81 

"1.  In  case  the  complaint  be  not  answered  by  any  de- 
fendant, the  summons  and  complaint,  or  copies  thereof; 
23roof  of  service,  and  that  no  answer  has  been  received; 
the  report,  if  any;  and  a  copy  of  the  judgment.  2.  In 
all  other  cases,  the  summons,  pleadings,  or  copies 
thereof;  and  a  copy  of  the  judgment,  with  any  verdict 
or  report;  the  offer  of  the  defendant,  exception,  case;  and 
all  orders  and  paj)ers  in  any  way  involving  the  merits 
and  necessarily  affecting  the  judgment."  ^  The  statute 
of  Oregon^  corresponds  substantially  with  that  of  Wis- 
consin in  this  respect,  except  that  in  cases  where  answer 
is  filed,  the  roll,  in  addition  to  the  matters  enumerated, 
in  the  Wisconsin  code,  must  contain  the  proof  of  service, 
all  orders  relating  to  a  change  of  parties,  and  instead  of 
"  all  orders  and  papers,"  all  journal  entries,  or  orders  in- 
volving the  merits  or  necessarily  affecting  the  judgment. 
In  Ohio,  Nebraska,  Dakota,  and  Kansas,  the  clerk  is 
required  to  make  a  complete  record  of  every  cause  from 
the  petition,  process,  return,  pleadings,  reports,  verdicts, 
orders,  judgment,  and  all  material  acts  and  proceedings 
of  the  court;  but  if  items  of  account  or  copies  of  papers 
attached  to  the  pleadings  be  voluminous,  the  court  may 
order  an  abbreviation,  or  a  pertinent  description  thereoA^ 
Except  in  Kansas,  he  is  forbidden  from  recording  the 
evidence.^  In  Georgia,  the  clerk  must  record  in  a  well- 
bound  book,  within  six  months  after  the  final  determina- 
tion of  each  cause,  all  proceedings  relating  thereto;*  in 
Alabama,  a  statute,  otherwise  similar  in  this  respect,  ex- 
cepts from  the  record  subpoenas,  affidavits  for  continuance, 
commissions  to  take  testimony,  evidence,  and  the  execu- 
tion.^ 

§  81.     Construction  of  Codes.  — These  statutes  have  not 
done  much  toward  answering  the  question.  What  is  the 

'  Wis.  Code,  sec.  19L  sec.  446;  Dakota  Code,  sec.  402;  Kan. 

*  Or.  Code,  sec.  272.  Code,  sees.  415-418. 

2  Ohio  Code,  sec.  390;   Neb.  Code,         *  Ga.  Code,  sec.  256. 

*  Ala.  Code.  sec.  767. 

JUDG.  L— 8 


§  82  THE    RECORD,  OR    JUDGMENT    ROLL.  114 

record?  After  enumerating  the  matters  obviously  indis- 
pensable to  every  judgment  roll, —  after  being  precise  where 
precision  had  already  been  attained,  —  they  employ  terms 
whose  signification  is  as  unlimited  as  are  the  confines  of 
space;  whose  application  to  the  practical  affairs  of  men 
must  be  as  diverse  as  are  the  temperaments  and  the  intel- 
lects of  the  judges  by  whom  the  application  happens  to  be 
made,  —  who  shall  be  able  to  determine  with  unerring  ac- 
curacy what  "  proceedings  and  acts  of  the  court  are  mate- 
rial"? w^hat  "papers,  orders,  or  journal  entries  necessa- 
rily aflFect  the  judgment  and  involve  the  merits  of  the 
action"?  Some  of  the  matters  excluded  from  the  judg- 
ment roll  under  these  statutes,  and  w^hich,  though  included 
by  the  clerk  as  parts  of  the  record,  will  be  disregarded  by 
the  courts,  are,  motions,  and  the  papers  on  which  they  are 
founded,  together  with  the  ruling  of  the  court  thereon;' 
matters  of  evidence,  oral  or  written,^  including  notes  ^  and 
mortgages*  filed  in  the  case,  and  constituting  the  cause  of 
action,  and  proof  of  the  filing  of  lis  pendens; "  memoranda 
of  costs  and  notice  of  adjustment;"  the  affidavit  requisite 
to  authorize  the  taking  of  property  in  replevin;^  affidavit 
and  order  of  arrest;^  proof  of  service  when  the  defendant 
has  answered  or  demurred;^  bill  of  particulars ;'*'  pleadings 
amended  or  demurrer  abandoned;"  opinion  of  the  judge;'^ 
affidavit  used  in  support  of  a  niotion;^^  minutes  made  by 
the  judge  upon  the  trial  docket.^'* 

§  82.  In  California  and  Nevada.  —  In  California  and 
Nevada,  the  law  providing  for  the  judgment  roll  is  dis- 
tinct and  specific.  The  matters  which  may  properly  be 
inserted  in  it  are  so  clearly  enumerated  as  to  leave  no 

1  Cornell    v.    Uavis,     16   Wis.    686;         «  Cor  win  v.  Freeland,  2  Seld.  560. 
Demming  v.  Weston,  15  Wis.  236.  »  Smith  v.  Holmes,  19  N.  Y.  271. 

2  Cord  V.  Southwell.  15  Wis.  211.  ^°  Kreiss  v.  Seligmau,  8  Barb.  439. 

5  Reid  V.  Case,  14  Wis.  429.  ^'  Brown  v.  Saratoga  R.  R.  Co.,  18 

*  Cord  V.  Southwell,  15  Wis.  211.  N.  Y.  495. 

*  Manning  v.  McClursT,  14  Wis.  350.  ^''  Tliomas   v.  Tanner,   14  How.  Pr. 
^  S.  &  S.  Plank  Road  Co.  v.  Thatcher,  426. 

6  How.  Pr.  226.  ^^  Backus  v.  Clark,  1   Kan.  303;  83 

'  Kerrigan    v.   Ray,    10    How.    Pr.     Am.  Dec.  437. 
213.  1*  Pennock  v.  Monroe,  5  Kan.  578. 


115  THE    RECORD,  OR    JUDGMENT    ROLL.  §  83 

necessity  for  doubt.  Section  670  of  the  Code  of  Civil 
Procedure,  recently  adopted  in  the  first-named  state, 
re-enacts  section  203  of  the  Practice  Act,  with  one  addi- 
tion, that  of  the  proof  of  service  of  summons  when  the 
answer  has  been  filed.  It  enacts  that  the  judgment  roll 
shall  consist, — 1.  If  no  answer  is  filed  by  any  defend- 
ant, of  the  complaint,  summons,  affidavit,  or  proof  of 
service,  memorandum  of  default,  and  copy  of  the  judg- 
ment; 2.  In  other  cases,  of  summons,  proof  of  service, 
pleadings,  verdict  of  jury,  or  finding  of  the  court,  com- 
missioner, or  referee,  bills  of  exception  taken  and  filed, 
copies  of  orders  sustaining  or  overruling  demurrers, 
copy  of  the  judgment  and  of  orders  relating  to  change 
of  the  parties. 

In  Nevada,  the  roll,  in  the  event  of  no  answer  being 
filed,  is  made  up  of  the  same  materials  as  in  California; 
in  all  other  cases,  it  consists  of  nothing  but  the  summons, 
pleadings,  copy  of  judgment,  and  of  any  orders  relating 
to  a  change  of  the  parties.^ 

§  88.  Construction.  —  In  California  it  has  been  deter- 
mined by  a  majority  of  the  judges  of  the  supreme  court, 
Justices  Sanderson  and  Sawyer  dissenting,  that  an  answer 
stricken  out  is  nevertheless  entitled  to  a  place  in  the  judg- 
ment roll.  ''  The  phrase  '  struck  out,'  as  applied  to  a 
pleading,  is  figurative  only.  An  order  sustaining  a  de- 
murrer to  a  pleading  defeats  or  suspends,  for  a  time,  its 
legal  effect  in  the  action;  and  a  successful  motion  to  strike 
out  an  answer  does  no  more.  In  either  event,  the  plead- 
ing, as  a  document,  remains  in  official  custody."  Such 
was  the  reasoning  of  the  majority  of  the  court.  The 
minority  said,  with  at  least  equal  reason,  "  After  the  an- 
swer was  stricken  out,  the  document  remained  on  the  files 
as  a  part  of  the  history  of  the  case;  but  it  was  no  longer, 
in  legal  contemplation,  a  pleading  in  the  case."  ^     In  two 

1  Nev.  Stats.  1869,  p.  228,  sec.  205.         ^  Abbott  v.   Douglass,   28  Cal,  298, 
Cost  bill  is  not  part  of  the  judgment     299. 
roll:  Kelly  v.  McKibbea,  54  Cal.  192. 


§§  84,  85    THE  RECORD,  OR  JUDGMENT  ROLL.         116 

cases  (Braly  v.  Seaman,  30  Cal.  610,  and  Forbes  v.  Hyde, 
31  Cal.  342),  the  decisions  were  founded  upon  the  assump- 
tion that  in  cases  where  no  answer  was  filed,  and  the  de- 
fendant was  served  by  means  of  publication,  the  affidavit 
on  which  the  order  of  publication  was  based,  and  also  the 
order  itself,  were  parts  of  the  judgment  roll.  These  de- 
cisions, so  far  as  they  affected  this  matter,  were  made 
upon  the  concession  of  counsel  in  the  case,  and  without 
the  consideration  of  the  court.  Neither  the  order  nor  the 
affidavit  belongs  in  the  judgment  roll,  and  both  will  be 
disregarded  if  j^ut  there.  The  affidavit  showing  the  fact 
of  publication  of  summons  in  a  newspaper,  and  the  de- 
posit of  summons  and  complaint  in  the  post-office,  being 
"  proof  of  service,"  must  be  attached  to  the  roll.'  The 
affidavit  and  notice  upon  which  a  motion  was  made,^  and 
an  order  submitting  a  demurrer  taken  under  advisement,^ 
and  the  ruling  of  the  court  in  striking  out  an  answer,^  are 
not  parts  of  the  record. 

§  84.  Interlocutory  Judgments.  —  "  The  statute  does 
not  expressly  provide  that  an  interlocutory  judgment 
shall  constitute  a  portion  of  the  judgment  roll;  but  as  such 
judgments  often  determine  the  rights  of  the  respective 
parties,  there  is  a  manifest  propriety  in  inserting  them  in 
the  judgment  roll.  We  are  of  the  opinion  that  an  inter- 
locutory judgment  comes  within  the  meaning  of  the  stat- 
utory requirement  that  the  judgment  shall  constitute  a 
portion  of  the  judgment  roll."^ 

§85.  New  Trial.  —  The  position  which  proceedings 
to  obtain  a  new  trial  occupy  in  relation  to  the  judgment 
roll  is  very  different  under  our  practice  from  that  which 
they  occupied  toward  the  judgment  roll  at  common  law. 

iHahn   v.   Kelly,   34  Cal.    391;    94         ^  Dimick     v.     Campbell,     31     Cal. 

Am.  Dec.  391;  Sharp  v.  Daugney,  S3  238. 

Cal.  505;  Galpin  v.  Page,  1  Saw.  321;         ^  Anderson  v.  Fisk,  36  Cal.  625. 
but  this  decision  was  reversed  by  the         *  Feely  v.  Sliirley,  43  Cal.  369. 
supreme  court  in  Galpin  v.  Page,   18         '"  Packard  v.  Bird,  40  Cal.  378. 
Wall.  350;  1  Cent.  L.  J,  491. 


117  THE    RECORD,  OR    JUDGMENT    ROLL.  §  86 

There  the  motion  for  a  new  trial  was  made  and  disposed 
of  before  the  judgment  was  entered.  It  therefore  found 
its  appropriate  history  in  the  same  place  with  all  the  other 
proceedings  taken  prior  to  making  up  the  record.  But 
when  the  motion  is  made  after  the  entry  of  the  judgment, 
or  though  made  before,  is  disposed  of  after,  then  it  must 
possess  a  record  of  its  own,  independent  of  the  judgment 
roll.  The  result  of  this  is,  that  while  the  judgment  roll 
passes  out  of  the  "  breast  of  the  judge  and  beyond  his 
control  by  lapse  of  the  term,"  the  record  of  the  new  trial 
still  remains  in  fieri,  and  will  so  remain,  unaffected  by 
the  adjournment  of  the  term,  and  susceptible  of  alteration 
and  amendment,  until  the  motion  is  finally  granted  or 
denied.* 

§  86.  States  where  No  Record  is  Made  up.  —  In  some 
of  the  states  no  record  is  made  up,  none  being  required 
by  law.^  In  these  states  the  files  and  journal  entries  prob- 
ably stand  in  place  of  the  record,  and  are  entitled  to  sim- 
ilar verity.^  In  other  of  the  states,  as  in  Pennsylvania 
and  Maryland,  the  keeping  of  records  fell  into  great  con- 
fusion and  neglect.  For  a  long  period  of  time,  little  more 
w^as  done  by  the  prothonotaries,  in  most  of  the  courts  of 
these  states,  than  to  make  such  memoranda  as  would 
guide  them  is  issuing  executions,  and  as  would  have 
enabled  them  to  draw  up  a  formal  judgment  roll.  Judg- 
ments, supported  only  by  these  informal  memoranda, 
were,  however,  admitted  in  the  highest  courts.  The  loose 
practice,  it  was  thought,  had  prevailed  so  long  and  so  uni- 
versally, had  been  so  thoroughly  acquiesced  in  by  bench 
and  by  bar,  and  had  been  made  the  foundation  on  which 
so  many  private  interests  of  great  extent  and  variety  were 
based,  that  the  adjudications  sufiiciently  though  infor- 
mally attested  by  it  ought  not  to  be  ignored;  that  while 
the  entries  and  memoranda  gave  data  from  which  a  rec- 

'  Spanagel  v.  Bellinger,  34  Cal.  476.     1  Mich.  227;  Lothrop  v.   Southwortb 
•^  Morrow  v.  Weed,  4  Clarke,  77,  127;     5  Mich.  436. 
66  Am.  Dec.  122;  Norwell  v.  McHenry,         *  Thayer  v.  McGee,  20  Mich.  195. 


§§   87-89  THE    RECORD;  OR    JUDGMENT    ROLL.  118 

ord  as  teclmical  and  prolix  as  any  ever  drawn  in  the 
court  of  king's  bench  could  be  readily  constructed,  they 
ought  to  be  regarded  as  competent  and  satisfactory  evi- 
dence of  the  judgment,  and  of  such  other  judicial  pro- 
ceedings as  were  necessary  to  support  it.^ 

§  87.  Want  of  Judgment  Roll.  —  "  The  judgment  does 
not  depend  upon  the  performance  of  the  clerical  duty  of 
making  up  the  judgment  roll,  or  preserving  the  papers."^ 
The  papers  constituting  the  roll  are  therefore  proper  evi- 
dence, and  will  support  an  execution,  though  they  have 
never  been  attached  together.^  In  New  York,  the  rule 
that  omissions  in  the  roll  do  not  invalidate  the  judgment 
has  been  applied  where  the  omission  consisted  of  the 
original  summons,*  of  an  order  of  reference,^  of  the  copy 
of  verdict,^  of  the  answer  of  defendant.^ 

§  88.  In  Chancery,  all  the  proceedings,  including  the 
evidence,  are  either  written  or  required  to  be  reduced  to 
writing.  It  is  said,  therefore,  that  everything  so  reduced 
to  waiting  becomes  a  part  of  the  record,  and,  as  such,  will 
be  investigated  by  the  appellate  court.^ 

§  89.  Replacing  Lost  Records.  —  The  rule  that  the 
record  imports  absolute  verity,  and  is  exclusively  admis- 
sible evidence  of  the  matters  properly  incorjDorated  in  it,^ 

1  S.  P.  Co.  V.  Sickles,  24  How.  333;  Allen,  443;    79  Am.   Dec.   797;    Com- 

Cromwell    v.    Bank    of    Pittsburg,    2  monvvealth  v.  Hatfield,  107  Mass.  231. 

Wall.  .Jr.  569.     The   opinion   of  Jus-  *  Hoffnvng  v.  Grove,  18  Abb.  Pr.  14, 

tice   Grier   in   the  last-named  case  is  142. 

exceedingly  interesting.     It  presents,  ^  Martin    v.   Kanouse,    2    Abb.    Pr. 

in   a  graphic   and  somewhat   humor-  390. 

ous     style,    the    history    of     judicial  ^  Cook  v.  Dickerson,  1  Duer,  679. 

records  in  Pennsylvania,  the  brevity  '  Renouil  ?i.  Harris,  2  Sandf.  641. 

with   which   they   were   entered,   the  *  Ferris  v.  McClure,  40  111.  99;  Smith 

little    importance    attached    to    their  v.  Newland,  40  111.  100. 

preservation,  and  finally,  the  worthy  '  The  rule  that  a  judgment  must  be 

character  and  eccentric   orthography  proved  by  the  record  doubtless  yields 

of  the  prothonotaries.  when  it  must  either  be  proved  in  some 

■■^  Lick   V.    Stockdale,    18   Cal.    219;  other  way,  or   denied   effect.     In    an 

Tutt  V.   Couzins,  50  Mo.   152;  Galpin  action  on  a  judgment  rendered  in  an- 

V.    Page,     1     Saw.     309;     Bridges    v.  other  state,  after   the   existence    and 

Thomas,  50  Ga.  378;  Craig  v.  Alcorn,  loss  of  the  judgment  roll  is  established 

46  Iowa,  560.  its  contents  may  be  proved   by  parol 

^  Sharp    V.    Lumley,    34    Cal.     611;  evidence:    Bailey  v.  Martin,    1)9  Ind. 

Newman's    Lessee    v.    Cincinnati,    18  103.  See  alsoRuby  v.Vau  Valkeuberg, 

Ohio,    323;    McGrath   v.    Seagrave,    2  72  Tex.  459. 


119  THE    RECORD,  OR   JUDGME>;T    ROLL.  §  89 

might  occasion  inucli  mischief,  if  the  courts  did  not  pos- 
sess and  exercise  a  power,  unaffected  by  lapse  of  time,  to 
replace  whatever  may  have  been  defaced,  lost,  or  destroyed 
by  accident,  negligence,  or  v\''antonness.  The  making  up 
of  a  new  roll  was  ordered  as  a  matter  of  course,  in  England, 
thirty  years  subsequent  to  the  filing  of  the  old  one/  In 
New  York,  a  new  nisi  prius  record  was  allowed  to  be  filed, 
and  a  postea  indorsed  thereon,  the  applicant  showing  by 
affidavit  that,  six  years  before,  a  verdict  had  been  taken 
and  judgment  thereon  given,  and  that  the  nisi  prius  record 
and  issue  roll  could  not  be  found.^  In  other  states,  the 
power  of  courts  of  record  to  supply,  on  proper  proof,  their 
own  lost  or  destroyed  records  is  affirmed  to  exist,  inde- 
pendent of  any  statute,  by  virtue  of  their  inherent  powers 
*'to  minister  ample  justice  to  all  persons  according  to 
law";^  and  such  statutes  as  are  enacted  upon  the  subject 
are  treated  as  cumulative,  and  therefore  do  not  impair  the 
power  otherwise  residing  in  the  courts.'*  The  practice  in 
proceedings  invoking  this  power  should  be  by  motion  in 
the  court  whose  record  it  is  proposed  to  restore/  The 
plaintiff  in  the  motion  should  give  reasonable  notice  to 
the  adverse  party  of  the  time  and  place  wdien  and  where 
the  application  will  be  made,^  accompanied  by  a  copy 
of  the  matter  he  proposes  to  have  enrolled  as  and  for  the 
lost  record,  and  also  accompanied  by  a  copy  of  the  affida- 
vits intended  to  be  used  at  the  hearing.  The  defendant 
in  the  motion  should  have  an  opportunity  of  appearing 
and  using  counter-affidavits.  If  it  appears  to  the  court,  at 
the  hearing,  that  the  record  is  lost  or  defaced,  and  what 
its  contents  were,  it  may  then  order  a  new  roll  to  be  made 
corresponding  to  the  old  one.     The  matter  thus  substi- 

1  Doucrlas  V.  Yallop,  2  Burr.  722.  8   Ohio   St.    201;    70   Am.    Dec.    100; 

2  Jackson  v.    Hainmoncl,    1    Caines,     Friuk  v.  Frink,  43  N.  H.  508;  80  Am. 
49(5  Dec.  189;  Dubois  v.  Thoma.s,  14  S.  C.  30. 

^  Keen  v.  Jordan,  13  Fla.  327;  Gam-  *  Busli  v.  Lisle,  8(5  Ky.  504;  Lilly  v. 

mon  V.  Knudson,  46  Iowa.  455;  Gari-  Larkin,  6G  Ala.  110. 

bal<li  V.  Carroll,  33  Ark.  568;  George  =  Canden  r.  Bloch,  65  Ala.  236. 

V.   Middough,  62   Mo.  549;   Julian  v.  «  Craddock  t).  Scarbourough,  54  Tex. 

Ward,  69  Mo.  153;  HoUisterr.  Judges,  346. 


§  89  a  THE    RECORD,  OR    JUDGMENT    ROLL.  120 

tuted  will  henceforth  be  received  in  all  courts,  and  given 
in  all  respects  the  same  effect  as  though  it  were  the  origi- 
nal record.^  Parol  evidence  must  be  admissible  as  a 
matter  of  necessity,  for  witljout  it  the  contents  of  a  lost 
record  can  rarely  be  shown.^  In  Indiana,  a  lost  or  de- 
stroyed judgment  may  be  replaced  or  reinstated  without 
reinstating  the  pleadings  or  establishing  their  contents.* 
It  needs  only  a  substantial  copy  of  the  record  intended  to 
be  enrolled,  to  justify  the  court  in  allowing  its  substitu- 
tion. It  must  also  be  consistent  with  the  record  remain- 
ing undestroyed.* 

§  89  a.  Chancery  has  No  Jurisdiction  to  Supply.  —  The 
supplying  of  a  lost  record  is  a  matter  of  which  the  court 
where  the  record  was  made  seems  to  have  exclusive  juris- 
diction. A  party,  instead  of  making  a  motion  in  the 
court  where  the  record  had  been  made,  filed  a  bill  in 
chancery,  praying  that  a  record  lost  by  fire  might  be  re- 
established. The  court  asserted  that  the  power  of  supply- 
ing a  new  record,  when  the  original  was  lost,  pertained  to 
courts  of  general  jurisdiction,  independent  of  legislation, 
but  sustained  a  demurrer  to  this  bill,  on  the  following 
grounds:  "The  jurisdiction  invoked  by  the  complainant 
in  the  present  case  has  not  been  exercised  by  any  court  of 
chancery  in  England  (so  far  as  we  have  been  able  to  dis- 

'  Adkinson   v.    Keel,    25   Ala.    551;  amendatory  power   over   it.     If   it   is 

Doswell  V.  Stewart,  11   Ala.  629;  Me-  defective,  another  grand  jury  must  be 

Lendon  v.  Jones,  8  Ala.  298;   42  Am.  called   upon    to    supply   the    defects. 

Dec.  640;    Pruit  v.  Pruit,  43  Ala.  73;  Probably  if  after  conviction  and  sen- 

DeshongD.  Cain,  1  Duvall,  .309;  Pearce  tence  the  record  were  destroyed,  the 

V.  Thackeray,  13  Fla.  574;  P^ussell  v.  court  might  supply  it  for  purposes  of 

Lillja,  90  111.  327.  evidence,  as  in  civil   cases.     But   the 

^  Lilly  w.  Larkin,  66  Ala.  110;  Goetz  defendant    can   be   tried   only  on   an 

V.  Koehler,  20  111.  App.  233.  original  indictment;  the  court  has  no 

^  Cox  V.  Stout,  85  Ind.  422.  authority  to  establish  a  copy  in   the 

Note.  —  The  power  which  enables  place  of  the  original.  If  the  original 
courts  to  supply  the  entire  record,  if  be  lost,  the  only  remedy  for  the  prose- 
lost  or  destroyed  after  judgment,  ex-  cution  is  to  have  the  defendant  rein- 
tends  to  suppljdng  any  of  the  plead-  dieted:  Bradshaw's  Case,  16  Gratt, 
ings  or  papers  in  civil  cases  prior  to  507;  86  Am.  Dec.  722;  State  v.  Harri- 
the  judgment.  But  the  court  has  no  son,  10  Yerg.  406;  Ganaway  v.  State, 
such  power  over   an  indictment.     Aii  22  Ala.  772. 

indictment  proceeds  from   the  grand  *  Shiver  v.  Shiver,  45  Ala.  353;  Bish- 

jury.     The  court  has  no   creative  or  op's  Heirs  v.  Hampton,  19  Ala.  792. 


121  THE    RECORD,  OR    JUDGMENT    ROLL.  §  89  b 

cover  with  our  limited  means  of  examination),  and  the 
principles  upon  which  the  court  takes  jurisdiction  in  the 
case  of  lost  instruments  comes  far  short  of  embracing  this 
case.  The  inherent  power  of  courts  to  control  their  own 
records,  and  to  supply  losses  therein,  it  seems,  is  antago- 
nistic to  the  power  of  any  other  court  to  interfere  and  make 
records  for  them.  By  this  proceeding,  one  court  of  special 
jurisdiction  is  invoked  to  take  cognizance  of  and  to  sup- 
ply to  another  court  of  general  jurisdiction  a  record  in 
lieu  of  one  which  has  been  destroyed.  This  power,  once 
admitted,  will  place  the  records  of  the  courts  of  common 
law  at  the  mercy  of  the  court  of  chancery,  and  might  lead 
to  absurd  conflict  between  the  law  and  equity  side  of  the 
court  over  the  records  of  the  common  law,  one  party  im- 
ploring the  conscience  of  the  one  to  seize  the  power  of  the 
other,  and  control  the  history  of  its  past  action,  and  per- 
haps to  compel  the  court  of  law  to  adopt  and  acknowledge 
as  a  fact  a  thing  of  which  it  may  deny  any  knowledge, 
and  against  which  action  the  other  party  may  justly  ask 
it  to  revolt  and  treat  as  a  usurpation,  because  its  own 
power  is  ample  and  adequate.  There  is  nothing  here  re- 
quiring the  exercise  of  the  conscience  of  the  court  which 
may  not  be  attained  by  a  simple  proceeding  according  to 
the  cou^e  of  the  common  law,  and  therefore  chancery 
has  no  office  to  perform."  ^ 

§  89  b.  Supplying  Omissions  in  the  Record. — So  much 
of  the  judgment  roll  as  contains,  or  should  contain,  the 
history  of  the  proceedings  which  have  taken  place  in 
court  is  subject  to  amendment  under  the  same  circum- 
stances  and  to  the  same  extent  as  the  judgment  itself.  ^  A 
very  important  part  of  the  judgment  roll  is  that  contain- 
ing evidence  of  the  service  of  process,  or  the  taking  of 
such  other  steps  as  are  necessary  to  give  the  court  juris- 
diction over  the  person  of  the  defendant;  and  it  may  hap- 

'  Keen  v.  Jordan,  13  Fla.  327;  Fisher  v.  Sievres,  65  111.  99;  Welch  v.  Smith, 
65  Miss.  394. 


§  89  b      THE  KECORD,  OR  JUDGMENT  ROLL.         122 

pen  that  this  part  has  been  omitted  from  the  roll,  or  has 
never  been  filed  in  court  at  all,  or  as  filed  and  incorporated 
in  the  roll,  is  defective,  and  not  sufficient  to  sustain  the 
jurisdiction  of  the  court,  when  attacked  on  appeal,  or  by- 
motion  to  set  it  aside,  or  even  when  assailed  in  a  collateral 
action  or  proceeding.  Then  the  question  arises  whether 
the  omission  may  be  supplied,  or  the  error  corrected;  and 
if  so,  by  what  means.  As  a  general  rule,  an  officer  who 
has  made  a  return  of  process  will  be  permitted  to  amend 
such  return  at  any  time.*  If  the  return  upon  the  sum- 
mons or  other  writ  designed  to  give  the  court  jurisdiction 
over  the  person  of  the  defendant  is  omitted  or  incorrectly 
made,  but  the  facts  really  existed  which  were  required  to 
give  the  court  jurisdiction,  the  weight  of  authority  at  the 
present  time  permits  the  officer  to  correct  or  supply  his 
return  until  it  states  the  truth,  though  by  such  correction 
a  judgment  apparently  void  is  made  valid.^  Though  the 
proof  of  the  service  of  process  does  not  consist  of  the  re- 
turn of  an  officer,  the  like  rule  prevails.  Thus  if  a  sum- 
mons has  been  published  in  the  manner  required  by  law, 
but  the  proof  of  publication  found  in  the  files  of  the  court 
is  defective,  the  court  may,  on  the  fact  of  due  publication 
being  shown,  permit  an  affidavit  to  be  filed  showing  the 
facts,  and  when  so  filed  it  will  support  the  judgiilent  as  if 
filed  before  its  entry.*  If  an  appeal  has  been  taken,  the 
clerk  of  the  court  whose  record  has  been  thus  corrected 
may  be  required  to  certify  it  to  the  appellate  court,  where 
it  wall  be  received  and  considered  in  its  corrected  form, 
and  sustained  if,  as  so  corrected,  it  is  free  from  error.* 

1  Malone  v.  Samuel,  3  A.  K.  Marsh.  '  Foreman   v.    Carter,  9   Kan.   674; 

350;  13  Am.  Dec.  172,  and  note.  Burr   v.   Seymour,  43   Minn.  401;    19 

'^  Kirkwood  v.  Keedy,  10  Kan.  453;  Am.  St.  Rep.  245;  Estate  of  Newman. 

Hefflin   v.   McMinn,  2  Stew.  492;   20  75  Cal.  213;  7  Am.  St.  Rep.  140;  Frisk 

Am.  Dec.  58;  Stotz  v.  Collins,  83  Va.  v.  Reigelman,  75  Wis.  499;  17  Am.  St. 

423;    Shenandoah    V.    R.    R.     Co.     v.  Rep.  198. 

Ashby's  Trustees,  8G  Va.  232;  19  Am.  *  Rew   v.   Barker,    5   Cow.  408;    14 

St.  Rep.   891;    Allison  v.  Thomas,  72  Am.    Dec.    515,    and   note;   Bergin  v. 

Cal.  562;  1  Am.  St.  Rep.  89.      A  die-  Rigg,    40   111.  61;    89  Am.    Dec^  335; 

turn  to  the  contrary  may  be  found  in  State  v.   Reid,    1    Dev.    &  B.   377;  28 

Reinliart  v.  Lugo,  86  Cal.  395;  21  Am.  Am.  Dec.  572. 
St.  Rep.  52. 


123  VACATING   JUDGMENTS.  §  90 

CHAPTER   VI. 

VACATING  JUDGMENTS. 

§    90.     Is  a  common-law  power. 

§    91.     Application  may  be  made  by  either  party,  but  generally  not  by  third 

persons. 
§    92.     Cases  where  third  persons  may  apply. 
§    9.3.     Power  to  vacate  restricted  in  California. 
§    94.     Writs  of  error  coram  nobis  and  coram  vobis. 
§    95.     Writs  of  audita  querela. 

§    96.     Vacation  after  lapse  of  the  term  —  General  principles  controlling. 
§    97.     Irregularities. 
§    98.     Nullities. 
§    99.     Fraud. 
§  lOJ.     Decrees. 

§  101.     Error  no  ground  for  vacation. 
§  101  a.     Judgments  against  minors. 
§  101  b.     Exceptional  instances. 
§  102.     Merits  and  laches. 
§  103.     Notice. 
§  104.     Conditional  vacation. 
§  104  a.     Entry  of  second  judgment. 
§  104  b.     Effect  of  vacating  judgment. 

§  90.  Is  a  Common-law  Power.  —  The  power  to  vacate 
judgments  was  conceded  by  the  common  law  to  all  its 
courts.'  This  power  was  exercised  in  a  great  variety  of 
circumstances,  and  subject  to  various  restraints.  The 
practice  in  the  different  states  is,  in  many  respects,  so 
conflicting  that  few  rules  can  be  laid  down  as  universally 
applicable.  One  rule  is,  however,  undoubted.  It  is,  that 
the  power  of  a  court  over  its  judgments,  during  the  entire 
term  at  which  they  are  rendered,  is  unlimited.^  Every 
term  continues  until  the  call  of  the  next  succeeding  term, 

1  Kemp  V.  Cook,  18  Md.  130;  79  Am.  Rich  v.  Thornton,  69  Ala.  473.     The 

Dec.  681.  fact   that   an  appeal  has  been  taken 

^  Underwood  v.  Sledge,  27  Ark.  295;  has  been  held  not  to  destroy  the  power 

Ashley  v.  Hyde,  5  Ark.  100;  State  v.  of  the  court  to  set  aside  the  judgment 

Treasurer,    43    Mo.    228;    Nelson    v.  apxjealed  from  at  the  term  of  its  rendi- 

Ghiselin,  17  Mo.  App.  063;  McClellan  tioii:   Leon  v.    Wettermath,   58   Tex. 

V.  Binkley,  78  Ind.  503;  Kelty  v.  High.  125;  Garza  v.  Baker,  58  Tcyc.  483.      A 

29  W.  Va.  381;  Volland  v.  Wi!cox,"l7  probate    court    may   vacate  its    order 

Neb.  46;  Fraley  v.  Featlier,  46  N.  J.  L.  or   decree:    In   re    Marquis,    85    Mo. 

429;  State  v.  Sowders,  42  Kan.   312;  615. 


§  91  VACATING    JUDGMENTS.  124 

unless  previously  adjourned  sine  die}  Until  that  time 
the  judgment  may  be  modified  or  gtricken  out.^  While 
the  right  to  have  a  judgment  set  aside  upon  sufficient 
showing  is  secured  to  the  applicant  by  the  granting  of  an 
appeal  in  case  of  a  denial  of  the  right,  the  party  whose 
judgment  is  vacated  before  the  lapse  of  the  term  has  no 
remedy.  The  action  of  the  court  in  granting  a  motion  to 
set  aside  a  judgment  is  discretionary,  and  not  to  be  re- 
viewed in  any  appellate  court.^  The  power  of  vacating  a 
judgment  must  be  exercised  by  the  court,  and  not  by  a 
judge  at  chambers.''  This  power  must  be  exercised  solely 
by  the  judiciary.  The  legislature  cannot  set  aside  a  judg- 
ment, nor  can  it  empower  any  court  to  set  aside  a  judg- 
ment which  had  been  rendered  and  had  passed  beyond 
the  control  of  the  court  prior  to  the  passage  of  the  act; 
because  in  doing  so  the  legislature  is  exercising  judicial 
functions  not  accorded  to  it  by  the  constitution.^  There- 
fore, a  statute  which  declares  "  that  in  all  cases  where 
judgment  heretofore  has  been,  or  hereafter  may  be,  ob- 
tained in  any  court  of  record  by  means  of  perjury,  or  any 
fraudulent  act,  practice,  or  representation  of  the  prevail- 
ing party,  an  action  may  be  brought  by  the  party  aggrieved 
to  set  aside  such  judgment  at  any  time  within  three  years 
after  the  discovery  of  the  facts  constituting  such  fraudu- 
lent act,  practice,  or  representation,"  must  be  restricted  in 
its  operation  to  judgments  rendered  after  its  enactment.^ 

§91.     Who  may  Apply  for.  —  An   application   to    set 
aside  a  judgment  may  be  made  by  either  of  the  parties. 

J  Townsend  v.  Chew,  31  Md.  247.  Bridge   Co.,    18   How.    421;    Cooley's 

2  Doss  V.  Tyack,  14  How.  297;  Tay-  Const.   Lim.,    94;  Griffin  v.   Cunning- 

lor  V.  Lusk,  9  Iowa,  444.  ham,  20  Gratt.  31;  United  States  v. 

2  Bolton  V.  McKinley,  22  111.  203.  Klein,   13  Wall.   128;  White  v.  Hern- 

♦  Ross  V.  Grange,  27  U.  C.  Q.  B.  306;  don,  40  Ga.  493;  De  Chastellux  v. 
Mearns  v.  Grand  Trunk  E'y  Co,,  6  Fairchild,  15  Pa.  St.  18;  53  Am.  Dec. 
U.  C.  L.  J.  62.  570;    Taylor   v.    Place,    4   R.    I.   324; 

*  Arnold  v.  Kelley,  5  W.  Va.  446;  Ratcliflfe  v.  Anderson,  31  Gratt.  105; 
Merrill  v.  Sherburne,  1  N.  H.  199;  8  31  Am.  Rep.  716;  Davis  v.  Menosha, 
Am.  Dec.  52;  Burch  v.  Newbury,  10  21  Wis.  491.  Contra,  Ex  parte  Bibb, 
N.  Y.  374*;  Lewis  v.  Webb,  3  Greenl.  44  Ala.  140. 

326;  Hill  V.  Town  of  Sunderland,  3  « Wielaud  v.  Shillock,  24  Minn. 
Vt.  507;  State  /;.  Wheeling  and  Belmont     345. 


125  VACATIXG    JUDGMENTS.  §  91 

The  one  who  has  been  injured  by  the  judgment  may  have 
it  vacated,  though  it  is  in  his  favor,  unless  it  was  given 
at  his  instance,  with  knowledge  on  his  part  of  its  irregu- 
larity.^ In  fact,  the  propriety  and  necessity  of  striking 
out  a  judgment  on  application  of  him  in  whose  favor  it 
is  are  apparent.  The  judgment  may  be  so  irregular  as 
to  furnish  no  justification  for  any  proceedings  to  execute 
it.  If  so,  the  party  recovering  it  is  entitled  to  have  it  set 
aside,  to  enable  him  to  proceed  against  the  defendant 
regularly.^  Or  through  fraud,  mistake,  or  irregularity, 
the  defendant  may  procure  a  judgment  to  be  entered  for 
much  less  than  the  amount  due.  In  this  case,  the  plain- 
tiff's right  to  have  the  judgment  vacated  is  as  obvious  as 
though  it  were  entirely  in  favor  of  the  defendant.  As  a 
general  rule,  none  but  the  parties  to  a  judgment  can  have 
it  set  aside.^  Every  litigant,  if  an  adult,  is  presumed  to 
understand  his  own  interests,  and  to  be  fully  competent 
to  protect  them  in  the  courts.  He  has  the  right  to  waive 
all  irregularities  in  proceedings  by  which  he  is  affected, 
and  is  entitled  to  exclusively  decide  upon  the  propriety 
of  such  waiver.  To  allow  disinterested  third  persons  to 
interpose  in  his  behalf,  and  to  undertake  the  manage- 
ment of  his  business,  according  to  their  judgment,  would 
create  intolerable  confusion  and  annoyance,  and  produce 
no  desirable  result.  To  permit  third  persons  to  become 
interested  after  judgment,  and  to  overturn  adjudications 
to  w4iich  the  original  parties  made  no  objection,  would 
encourage  litigation,  and  disturb  the  repose  beneficial  to 
society.     Therefore,  if  the  defendant  is  the  real  as  well  as 

1  Downing  v.  Still,  43  Mo.  309.   But  to  have  such  proceedings  or  judgments 

the  person  applying  must  show  that  set  aside  ":  Gere  v.  Gundlach,  57  Barb, 

he  was   prejudiced  by  the  judgment  15. 

at  its  rendition:  Hervey  v.  Edmunds,  ^  Herdic  v.  Woodward,   75  Pa.  St. 

68  N.  C.  243;  Hardin  v.  Lee,  51  Mo.  479. 

241.    "Nothing  can   be   clearer   than  *  Hinsdale  v.  Hawley,  89  N.  C.  87; 

that  for  defects    or  irregularities  not  Merchants'  &  M.  N.  B.  v.  Harman,  80 

affecting  the  jurisdiction  of  tlie  court,  Ga.   624;  Coleman  v.  Case,    66  Iowa, 

and  wliere  no  fraud  or  collusion  is  im-  53i;  Parsons  v.  Johnson,  66  Iowa,  455; 

puted,  the  remedy  for  such  defects  is  Walton  v.  Walton,  80  N.  C.  26;  Baugh 

given  to  the  party  alone,  and  that  an-  v.   Baugh,  37  Mich.   59;  26  Am.  Kep. 

other  judgment  creditor  is  not  entitled  495. 


§  92  VACATING    JUDGMENTS.  126 

the  nominal  party  affected,  as  long  as  he  is  satisfied  with 
the  judgment,  all  other  persons  must  be.^  None  of  his 
subsequent  assignees  can  complain  for  him.  He  who 
purchases  lands  liable  to  a  judgment  lien  cannot  have 
the  judgment  vacated  for  irregularity,  to  avoid  the  lien. 
The  best  position  he  can  occupy  is  that  of  a  purchaser 
cum  onere,^  even  though  he  ofi'ers  to  prove  that  he  made  a 
vain  search  for  such  liens  before  completing  his  purchase.^ 
Third  persons  may  sometimes  have  a  judgment  vacated 
on  the  ground  that  it  is  collusive,  or  that  the  cause  of  ac- 
tion on  which  it  is  based  was  fictitious;  but  they  are  not 
allowed  to  take  advantage  of  errors  or  irregularities  of 
proceeding.*  If  a  judgment  prejudicially  affects  two  or 
more  persons,  either  of  them  may  move  for  its  vacation, 
and  if  proper  cause  is  shown,  may  obtain  relief.^  Whether 
this  relief  must  necessarily  be  extended  to  all  the  parties 
wall  depend  upon  the  further  question  whether  the  judg- 
ment must  be  regarded,  under  the  circumstances  of  the 
case  and  the  laws  of  the  state,  as  an  entirety.^ 

§  92.  When  Third  Persons  may  Apply.  —  The  rule  that 
none  but  parties  to  the  judgment  are  permitted  to  inter- 
fere admits  of  exceptions,  excluding  from  its  operation 
persons  not  nominal  parties  to  the  action,  but  who  are 
necessarily  affected  by  the  judgment,  and  who  have 
equities  entitled  to  be  protected  from  its  operation.'^ 
Thus  if  a  party  confesses  judgment  for  too  much,  or  not 
in  conformity  to  the  statute,  it  may  be  set  aside  by  a 
judgment  creditor;  or  if  the  defendant  is  a  trustee  about 
compromising  the  rights  of  his  cestui  que  use,  by  confes- 
sion, by  default,  by  carelessness,  or  by  a  palpably  mistaken 
view  of  his  duty,  the  court,  at  the  instance  of  the  real 

1  Drexel's  Appeal,  6  Pa.  St.  272.  Fall  v.  Evans,  20  Ind.  210;  St.  John  v. 

2  Jacobs  V.  Burgwyn,  63  N.  C.  196.     Holmes,  20  Wend.  609;  32  Am.  Dec. 

3  Packard  v.  Smith,  9  Wis.  184.  603. 

*  Hauer's    Appeal,    5  Watts    &    S.         *  Post,  sec.  136. 

473.  ■'  McClurg  v.  Schwartz,  87  Pa.  St. 

*  Storm  Lake  V.  Iowa  Falls,  62  Iowa,     521:  McWillie  v.  Martin,  25  Ark.  556; 
218;  Franks   v.   Lockey,   45  Vt.   395;     ^tna  Ins.  Co.  v.  Aldrich,  38  Wis.  107. 


127  VACATING    JUDGMENTS.  §  93 

party  in  interest,  -uill  interpose.     The   comptroller  of  a 
city,  having  charge  of  its  finances,  has  a  right  to  have  a 
judgment  against  the  city  set  aside,  upon  showing  that  it 
was  obtained  by  the  collusion  or  consent  of  other  city 
officials.'     Doubtless,  as  intimated  in  the  preceding  sec- 
tion, where  one  of  the  parties  is  a  nominal  and  not  a  real 
litigant,  the  rights  of  the  latter  may  be  protected  by  per- 
mitting him,  in  a  proper  case,  to  move  for  and  obtain  the 
vacation  of  a  judgment  prejudicial  to  his  interests.^     If  a 
judgment  operates  as  a  lien,  or  otherwise  affects  the  title 
to   property,   a  transfer  of   such    property   may   work  a 
change  in  the  parties,  who  may  move  to  vacate  the  judg- 
ment.    Thus  in  Nebraska,  if  a  defendant  by  a  transfer  of 
property  is  placed  in  such  a  position  that  he  can  no  longer 
be  prejudiced  by  a  judgment,  he  cannot  procure  it  to  be 
vacated.^    On  the  other  hand,  such  transfer,  whether  by 
conveyance  or  by  the  death  of  the  defendant,  may  give 
his  grantees,  representatives,  or  successors  in  interest  a 
right  to  move  to  vacate  the  judgment,  as  where  he,  having 
no  longer  any  interest  in  the  controversy,  suffers  default.* 
Even  though  the  transfer  is  made  after  the  entry  of  judg- 
ment, the  grantee  may  move  to  vacate  it  on  the  ground 
that  it  is  void  because  process  was  not  served  on  the  de- 
fendant.^ 

§  93.  Law  in  California.  —  In  California  the  jurisdic- 
tion of  a  court  over  its  judgments,  except  where  otherwise 
expressly  provided  by  statute,  is,  unless  continued  by  some 
appropriate  proceeding,  exhausted  at  the  close  of  the  term. 
The  process  continues  to  be  subject  to  the  control  of  the 
court,  but  the  judgment  cannot  be  vacated  on  any  ac- 
count,^ except  that  it  is  a  nullity,  "  a  dead  limb  on  the 

1  Lowber  v.  Mayor  of  New  York,  26  Knott  v.  Taylor,  99  K  C.  410;  6  Am. 

Barb   262          *  St.  Rep.   547;  Ladcl  v.  Stevenson,  112 

•^  yEtna'ins.  Co.  v.  Aldrich,  38  Wis.  N.  Y.  325;  8  Am.  St.  Rep.  748. 

107;  Mann  v.  ^tna  Ins.  Co.,  38  Wis,  *  People  v.  MuUan,  65  Cal.  396. 

]14  «  Baldwin   v.  Kramer,  2   Cal.    582; 

3  Powell     V.    McDowell,     16    Neb.  Robb   v.    Robb,    6    Cal.    ?1;    Bell    v. 

424.  Thompson,  19  Cal.  706;  Shaw  v.  Mc- 

«  Plummer  v.  Brown,  64  Cal.  429;  Gregor,  8  Cal.  521. 


§  94  VACATING    JUDGMENTS.  128 

judicial  tree,  which  should  be  lopped  off." '  This  denial 
of  the  power  of  the  courts  to  set  aside  their  judgments  has 
probably  been  made  in  no  other  state.  On  the  contrary, 
this  power  has  been  fully  recognized  and  liberally  em« 
ployed  in  England  and  in  the  United  States,  both  at  law 
and  in  equity.  The  remedy  by  application  to  the  court 
in  which  judgment  was  pronounced  seems  in  many  states 
as  complete  as  could  be  obtained  by  proceedings  in  chan- 
cery, and  in  nearly  all  the  states  has  entirely  superseded  the 
remedy  of  audita  querela,  and  by  writ  of  coram  nobis.  As 
most  of  the  authorities  concede  that  a  judgment  may  now 
be  vacated  on  motion  for  any  of  the  matters  for  which  a 
writ  of  coram  nobis  or  an  audita  querela  would  formerly 
lie,  the  consideration  of  the  matters  to  whjch  those  rem- 
edies were  successfully  applied  is  material. 

§  94.  Writs  of  Error  Coram  Nobis  and  coram  vobis  have 
frequently  been  treated  as  identical.  The  object  sought 
by  each  writ  is  the  same;  but  the  method  of  seeking  it  is 
different.  The  former  writ  issued  out  of  the  court  where 
the  error  was  alleged  to  have  occurred,  and  was  returnable 
before  the  same  court.  It  recited  that  "because  in  the 
record  and  proceedings,  and  also  in  the  rendition  of  the 
judgment  of  a  plea  in  our  court  before  us,  it  is  said  a 
manifest  error  hath  happened";  and  it  then  directs  the 
judges  to  inspect  the  "  record  and  proceedings  .which  be- 
fore us  now  remain,"  and  to  do  what  of  right  ought  to  be 
done  to  correct  that  error.  The  latter  writ  was  made  re- 
turnable before  some  superior  tribunal,  and  required  the 
record  and  proceedings  to  be  certified  to  such  tribunal  for 
its  revisory  action.^  A  judgment  is  not  to  be  set  aside 
because  improperly  entered,  unless  the  showing  is  suffi- 
cient to  £tuthorize  a  writ  of  error  coram  nobis.  If  there  is 
error  in  the  process,  or  through  the  default  or  misprision 
of  the  clerk,  it  must  be  corrected  in  the  same  court.  But 
this  writ  cannot  reach  error  in  matters  of  law.     A  plea  in 

1  People  V.  Greene,  74  CaL  400;  5        »  Camp  v.  Bennett,  16  Wend.  48. 
Am.  St.  Rep.  448. 


129  VACATING   JUDGMENTS.  §  94 

abatement  setting  up  the  death  of  one  of  the  parties,  or  that 
he  is  a  slave  or  a  kinatic,  if  overruled,  estops  the  party 
who  presented  it  from  again  urging  those  matters  in  the 
same  court;  for  in  this  case  it  is  evident  that  the  court 
misapprehended  the  law,  but  understood  the  facts/  If, 
however,  the  proceedings  are  based  upon  facts  presumed 
by  the  court  to  exist,  as  when  one  of  the  parties  is  insane, 
or  is  an  infant  or  a  feme  covert,  or  has  died  before  ver- 
dict, and  the  court,  supposing  such  party  to  be  alive  and 
competent  to  appear  as  a  litigant,  renders  judgment,  it 
may  be  set  aside  by  a  writ  of  coram  nobis}  But  this  writ 
does  not  lie  to  correct  any  error  in  the  judgment  of  the 
court,  nor  to  contradict  or  put  in  issue  any  fact  directly 
passed  upon  and  affirmed  by  the  judgment  itself.  If  this 
could  be,  there  would  be  no  end  to  litigation.  Accord- 
ingly, where  the  judgment  stated  that  defendant  appeared 
and  confessed,  he  was  not  allowed  to  controvert  that  state- 
ment, after  the  lapse  of  the  term,  for  the  purpose  of  vacat- 
ing the  judgment.^  The  writ  of  error  coram  nobis  is  not 
intended  to  authorize  any  court  to  review  and  revise  its 
opinions;  but  only  to  enable  it  to  recall  some  adjudication 
made  while  some  fact  existed  which,  if  before  the  court, 
would  have  prevented  the  rendition  of  the  judgment,  and 
which,  without  any  fault  or  negligence  of  the  party,  was 
not  presented  to  the  court.  That  defendant  was  sum- 
moned by  a  wrong  name,  and  was  unable  to  find  the 
declaration,  and  therefore  did  not  appear,  does  not  entitle 
him  to  this  writ.  It  is  his  own  fault  that  he  did  not  plead 
the  misnomer  or  take  judgment  of  nolle  prosequi.*  These 
writs  have  been  generally,  if  not  universally,  superseded, 
and  redress  formerly  obtained  through  their  aid  is  now 
sought  by  motion.^ 

I  Hawkins  v.  Bowie,  9  Gill  &  J.  428;  '  Richardson's    Ex'r    v.    Jones,     12 

Bridendolph  v.  Zellers's  Ex'rs,  3  Md.  Gratt.  53. 

325.  *  Brandon  v.  Diggs,  1  Heisk.  472. 

•^  Kemp  V.  Cook,    18   Md.    130;   79  ^  Pickett  v.  Legerwood,  7  Pot.   144; 

Am.  Dec.  GSl;  Mississippi  &  T.  R.  R.  McKindley  v.   Buck,  43  111.   4SS;  Lifa 

Co.  V.  Wynne,  42  Miss.  315;  Hurst  v.  Ass'u  v.  Fasaett,  102  III.  315. 
Fisher,  1  Watts  &  S.  438. 

J0DG.  I.— 9 


§  95  VACATING    JUDGMENTS.  130 

§  95.     Audita   Querela.  — The    proceeding   by   writ   of 
audita  querela  is  said  to  have  commenced  about  the  tenth 
year  of  the  reign  of  Edward  III.     It  gradually  gave  way 
in  England,  in  most  cases,  to  the  more  simple  and  equally 
efficient  remedy  by  motion.     It  is,  nevertheless,  still  used 
in  some  of  the  United  States,  and  is  sometimes  sanctioned 
in  cases  where  the  writ  of  coram  nobis  seems  peculiarly 
appropriate.     The  original  purpose  of  the  writ,  and  the 
one  to  which  it  is  generally  confined,  is  that  of  relieving  a 
party  from  the  wrongful  acts  of  his  adversary,^  and  of 
permitting  him  to  show  any  matter  of  discharge  which 
may  have  occurred  since  the  rendition  of  the  judgment.'' 
It  is  in  the  nature  of  a  bill  in  equity;  and  was  invented, 
says  Blackstone,  "lest  in  any  case   there  should   be  an 
oppressive   defect  of  justice,  where  a  party  who  hath  a 
good  defense  is  too  late  to  make  it  in  the  ordinary  forms 
of  law."     It  is  a  judicial  wa^it  founded  upon   the  record 
and  directed  to  the  court  where  the  record  remains.^     It 
has  the  usual  incidents  of  a  regular  suit,  with  its  issues  of 
law  and  of  fact,  its  trial  and  judgment;^  and  the  persons 
whose  judgment  is  sought  to  be  vacated  must  be  made 
parties  and  given  notice.^     Besides  being  an  appropriate 
remedy  where  some   matter  of  discharge  has  arisen,  the 
audita  querela  may  be  employed  w^hen  a  good  defense  to 
the  action  has  accrued  since  the  entry  of  the  judgment,  or 
where  such  defense,  though  existing  prior  to  the  judgment, 
was  not  brought  to  the  attention  of  the  court,  on  account 
of  fraud  or  collusion  of  the  prevailing  party.^     Where  the 
defendant  during  the  pendency  of  the  suit  paid  the  debt, 
and  the   plaintiff  afterward  took  judgment,  it  was  held 

1  Kimball   V.   Randall,  56   Vt.   558;  '  Brooks  v.  Hunt,  17  Johns.  484. 
Hawley  v.  Mead,  5'2  Vt.  343;  Lovejoy  ^  Gleason  v.  Peck,  12  Vt.  56;  36  Am. 
V.  Webber,    10   Mass.   103;    Little    y.  Dec.  329;  Melton  v.  Howard,  7  How. 
Cook,  1  Aiken,  363;  15  Am.  Dec.  698;  (Miss.)  103;  Troop  v.  Ricardo,  9  Jur., 
Brackett  i;.  Winslow,  17  Mass.  159.  N.  S.,  887;    H  Week.    Rep.   1014;   8 

2  Powell's    Appellate     Proceedings,  L.  T.,  N.  S.,  757;  33  Beav.  122. 

377;  Barker  v.  Judges,  4  Johns.  191.  «  Bryant   v.  Johnson,   24   Me     304; 

3  Poultney  v.  Treasurer,  25  Vt.  168;     Wetmore  v.  Law,  34  Barb,  olo;  btani- 
'  Harper  v.  Kean,  11    Serg.   &   R.  280;     foi-d  v.  Barry,  1    Aiken,  321;    lo  Am. 

Warner  v.  Crane,  16  Vt.  79.  Dec.  692. 


131  VACATING    JUDGMENTS.  §  95 

that  this  writ  would  lie.'  It  has  also  been  applied  for  the 
purpose  of  vacating  a  judgment  against  an  infant  who 
defended  without  appointment  of  a  guardian;^  and  a  judg- 
ment against  a  lunatic  whose  guardian  was  not  notified.^ 
In  Vermont,  it  seems  to  be  employed  with  more  frequency 
than  elsew^here,  and  to  answer  as  a  specific  for  all  sorts  of 
mischiefs  not  otherwise  provided  against.  It  there  has 
power  to  vacate  a  judgment  rendered  after  a  suit  is  dis- 
continued by  agreement,  or  by  failure  of  the  parties  to 
appear  for  trial  or  for  irregularity,*  or  in  cases  where  a 
justice  of  the  peace  should  have  allowed  an  appeal,  but 
refused  to  do  so.^  It  is  the  proper  remedy  when  two  judg- 
ments have  been  rendered  on  the  same  cause  of  action, 
and  one  of  them  is  paid.®  It  is  not  sustained  b}'-  error  of 
the  court  in  a  matter  of  law  or  of  fact; ^  and  is  never  per- 
missible in  a  case  where  a  writ  of  error  is  proper  by  the 
common  law,  though  the  right  to  such  writ  has  been 
taken  away  by  statute.^  But  a  party  having  an  oppor- 
tunity of  making  his  defense,  or  who  is  injured  through 
his  own  neglect,  cannot  be  relieved  by  audita  querela.^ 
Nor  can  a  party,  by  audita  querela,  obtain  relief  from  a 
judgment  rendered  against  him  on  the  unauthorized 
appearance  of  an  attorney.^"  The  fact  that  the  judgment 
debtor  had  an  equitable  defense  not  cognizable  at  law 
does  not  entitle  him  to  this  writ;"  nor  can  he  by  it  obtain 
affirmative  relief  other  than  the  setting  aside  of  the  judg- 
ment, and  the  relief  incidentally  following  therefrom.'^ 
Proceedings  hj  audita  querela  are  in  the  nature  of  a  direct 
rather  than  of  a  collateral  attack,  and  therefore  the  party 
seeking  relief  may  contradict  the  record.'^     A  judgment 

'  Lovejoy  v.  Webber,  10  Mass.  101.  '  Thatcher  ?-.  Gammon,  12  Mass.  270; 

«  Starbird  v.  Moore,  21  Vt.  529.  Griswoldv.  Rutland,  23  Vt.  324;  Avery 

»  Lincoln  V.  Flint,  18  Vt.  247.  v.  United  States,  12  Wall.  304;  Barker 

*  Jenney  v.  Glynn,  12  Vt.  480;  Pike  v.  Walsh,  14  Allen,  175. 

V.  Hill,  15  Vt.  183.  !«  Abbott  v.    Dutton,    44    Vt.    551; 

5  Edwards   v.    Osgood,  33   Vt.  224;  Spaulding  v.  Swift,  18  Vt.  214. 

Harriman  v.  Swift,  31  Vt.  385.  "  Garfield  v.  University,  10  Vt.  536. 

«  Bowne  v.  Joy,  9  Johns.  221.  '^  Foss  v.  Witham,  9  Allen,  572. 

'  Lamson   v.   Bradley,  42   Vt.    165;  "  Folsom  i'.  Connor,  49  Vt.  4;  Pad- 
School  IJistrict  V.  Hood,  27  Vt.  214.  dlofonlw.  Bancroft,  22  Vt.  529;  Hill  v. 

8  Spear  v.  Flint,  17  Vt.  497.  Warren,  54  Vt.  73. 


§  96  VACATING    JUDGMENTS.  132 

debtor  residing  out  of  the  state  and  who  has  not  been 
served  with  process  may,  by  aid  of  this  writ,  have  an  exe- 
cution set  aside  which  has  been  taken  out  by  a  creditor, 
without  first  filing  a  bond  required  by  statute.'  An  audita 
querela,  like  a  motion  to  set  aside  a  judgment,  is  only 
available  in  behalf  of  one  who  was  prejudiced  by  the  judg- 
ment at  its  rendition.  If  the  party  does  not  seek  to  avoid 
the  judgment,  his  subsequent  alienee  will  not  be  allowed 
to  interfere  with  it.^  A  party  who  has  been  discharged 
in  insolvency,  if  he  suffers  default  to  be  taken  against  him, 
is  not  entitled  to  have  the  judgment  set  aside  for  the 
purpose  of  pleading  his  discharge.^  As  a  general  rule, 
whenever  audita  querela  would  lie  at  common  law,  relief 
may  now  be  obtained  on  motion.  But  perhaps  in  some 
of  the  states  and  in  England,  if  the  right  to  relief  is  ques- 
tionable, or  if  the  facts  of  the  case  are  disputed,  the  party 
moving  may  be  compelled  to  have  recourse  to  this  writ.* 
In  a  majority  of  the  states  it  is  undoubtedly  superseded 
by  the  more  summary  method  of  application  by  motion 
upon  notice  to  the  adverse  party." 

§  96.  Vacating  Judgments  after  Lapse  of  Term  —  Gen- 
eral Principles  Controlling.  —  All  judgments  regularly 
entered  must  become  final  at  the  end  of  the  term.  After 
that  time  the  courts  which  entered  them  have  no  power 
to  set  them  aside,^  unless  some  proceeding  for  that  object 
has  been  commenced  within  the  term  and  has  been  con- 

'  Folan  V.  Folan,  59  Me.  566;  Ding-  Falvey,  18  Wis.  571;  Smock  v.  Dade, 

man  v.  Meyers,  13   Gray,   1;    Harnioa  5  Rand.  639;  16  Am.  Dec.  780;  Dun- 

V.  Martin,  52  Vt.  255.  lap  r.  Clements,  18  Ala.  778;  Chambers 

■^  Beard  V.  Ketchum,  8  U.  C.  Q.  B.  v.  Neal,   13   B.   Mon.  256;   Huston  v. 

523.  Ditto,  20  Md.  305. 

3  Faxon  v.  Baxter,  11  Cush.  35.  «  Bronson  v.  Schulten,  104  U.  S.  410; 

*  Giles  V.  Nathan,  5  Taunt.  558;  Trawick  v.  Trawick,  67  Ala.  271; 
Lister  v.  Mundell,  1  Bos.  &  P.  427;  Moore  v.  Heunant,  90  N.  C.  163;  Hall 
Symonds  v.  Blake,  4  Dowl.  P.  C.  263;  v.  Paine,  47  Conn.  429;  Clemmons  v. 
2  Cromp.  M.  &  R.  416;  1  Gale,  182;  Field,  99  N.  C.  400;  Memphis  &  C. 
BakertJ.  Ridgway,  2Bing.  41;  9  Moore,  R.  R.  Co.  v.  Johnson,  16  Lea,  387; 
114;  Wardeil  v.  Eden,  2  Johns.  Cas.  Morgan  v.  Hayes,  Breese,  126;  12  Am. 
258.  Dec.   147;  Wood  v.  Payea,  138  Mass. 

*  McMillan  v.  Baker,  20  Kan.  50;  61;  Rogers  v.  Watrous,  8  Tex.  62;  58 
Longworth  v.  Screven,  2  Hill  (S.  C.)  Am.  Dec.  100;  Rawdon  v.  Rapley,  14 
298;   27  Am.  Dec.  381;   McDonald   v.  Ark.  203;  58  Am.  Dec.  370. 


133  VACATING   JUDGMENTS.  §  96 

tinued  for  hearing,  or  otherwise  remains  undisposed  of.^ 
In  those  cases  in  which  the  court  afterward  interferes  to 
vacate  or  annul  a  judgment,  the  interference  can  only  be 
justified  on  the  ground  that  the  judgment  was  procured 
in  such  a  manner  as  to  indicate  that  it  was  not  intended 
to  be  authorized  by  the  court,  or  if  authorized  by  the 
court,  that  it  is  nugatory  for  want  of  jurisdiction  over  the 
parties.^  The  interests  of  society  demand  that  there 
should  be  a  termination  to  every  controversy.  Courts 
have  no  power,  after  fully  deliberating  upon  causes,  and 
ascertaining  and  settling  the  rights  of  parties,  to  add 
clauses  to  their  judgments  authorizing  the  losing  party  to 
apply  at  a  subsequent  term  to  have  the  judgment  against 
him  set  aside.  If  a  vacillating,  irresolute  judge  were 
allowed  to  thus  keep  causes  ever  within  his  power,  to  de- 
termine and  redetermine  them  term  after  term,  to  bandy 
his  judgments  about  from  one  party  to  the  other,  and  to 
xihange  his  conclusions  as  freely  and  as  capriciously  as  a 
chameleon  may  change  its  hues,  then  litigation  might  be- 
come more  intolerable  than  the  wrongs  it  is  intended  to 
redress.  Leave  granted  in  one  term  to  move  to  set  aside 
a  judgment  at  the  next  term  is  void.'  It  is  doubtful 
whether  after  the  lapse  of  a  term  after  a  judgment  has 
been  regularly  entered,  the  court  does  not  lose  jurisdiction 
over  the  action  so  that  the  parties  cannot  by  their  consent 
confer  power  upon  it  to  set  aside  the  judgment  and  rede- 
termine the  controversy;*  and  whether  this  is  so  or  not, 
the  parties  cannot  by  their  stipulation  make  it  the  duty 
of  the  court  to  vacate  the  judgment  and  retry  the  cause.® 
The  want  of  power  to  vacate  judgments  after  the  lapse 
of  the  terra  at  which  they  were  regularly  entered  exists  in 
the  appellate  as  well  as  in  the  subordinate  courts.*     The 

1  Green  v.  P.  W.  &  K.   R.  R.  Co.,         '  Hill  v.  City  of  St.  Louis,  20  Mo. 
11  W.  Va.  6S5;  Windett  v.  Hamilton,     584. 

52  111.  180.  *  Little   Rock   v.    Bullock,    6    Ark. 

2  Cook  V.  Wood,  24  111.  295;  Ashby     282;  Anderson  v.  Thompson,  7   Lea, 
V    Glasgow,    7    Mo.    320;    State   Sav.     259. 

Inst.  V.  Nelson,  49  IlL  171;  Merle  v.         *  Kidd  v.  McMillan,  21  Ala.  325. 
Andrews,  4  Tex.  200.  *  DonuoU  v.  Hamilton,  77  Ala.  610. 


§  97  VACATING   JUDGMENTS.  134 

power  of  courts  to  set  aside  judgments  after  the  lapse  of 
the  term  is  subject  to  settled  principles,  and  the  action  of 
courts,  if  not  authorized  by  those  principles,  is  susceptible 
of  review  and  reversal  in  the  appellate  courts.^  It  must 
be  confessed,  however,  that  while  those  principles  may  ^e, 
and  probably  are,  sufficiently  defined  in  each  state,  they 
vary  in  material  respects  in  the  different  states.  One  state 
withholds  this  power  altogether,  others  confine  it  to  judg- 
ments rendered  contrary  to  the  practice  or  without  the 
authority  of  the  court,  while  in  some  it  is  applied  within 
very  broad  limits,  and  seems  to  be  kept,  like  reserved 
troops  at  a  battle,  for  desperate  emergencies  not  otherwise 
to  be  overcome.^  Some  courts  regard  judgments  by  de- 
fault or  upon  confession  as  always  within  their  control, 
and  therefore  as  subject  to  vacation  at  any  time,  if,  in 
their  opinion,  notwithstanding  the  lapse  of  time,  that  re- 
lief ought  to  be  granted.^ 

§  97.  For  Irregularity.  — "  Irregular  and  improper 
conduct  in  procuring  judgment  to  be  entered  is  a  well- 
settled  ground  for  vacating  it.  This  has  become  one  of 
the  settled  remedies  where  the  impropriety  or  irregularity 
has  not  been  induced  by  the  fault  or  negligence  of  the 
judgment  debtor."  *  A  judgment  is  said  to  be  irregular 
whenever  it  is  not  entered  in  accordance  with  the  prac- 
tice and  course   of  proceeding  where  it  was  rendered,^ 

»  Huntington  v.  Finch,  3  Ohio  St.  17  Pick.  169;  Wolfe  v.  Davis,  74  N.  C. 

445:   Henderson   v.    Gibson,    19    Md.  597. 
234.  2  Breden  v.  Gilliland,  67  Pa.  St.  36; 

^  In  Massachusetts,  where  a  wrong  King  i'.  Brooks,  72  Pa.  St.  363;  Powell 

verdict  had  been  rex^orted  to  the  court  v.    Jopling,   2   Jones,   400;  Wilson  v. 

through  mistake,  and  a  judgment  was  Tarbert,    3   Stew.  296;    21   Am.   Dec. 

entered  thereon,  the  court  said:  "We  637;  Hall  v.  Jones,  32  111.  38. 
think  it  clear  that  the  court  had  power         *  Huntington  v.  Finch  &  Co.,  3  Ohio 

at  a  subsequent  term,  in  the  exercise  St.  445;  Downing  v.  Still,  43  Mo.  309; 

of  a  judicial  discretion,  on  satisfactory  Doan  v.  Holly,  27  Mo.  256;  Harkuess 

proof  that  an  erroneous  entry  had  been  v.  Austin,  36  Mo.  47;  Craig  v.  Wroth, 

made  on  the  docket  through  mistake,  47  Md.  281;  O'Hara  v.  Baum,  82  Pa. 

to  order  the  case  to  be  brought  for-  St.  416. 

ward  for  the  purpose  of  vacating  the         *  Dick  v.  McLaurin,  63  N.  C.   185^ 

previous  erroneous  order,  and  making  Davis   v.   Shaver,   1  Phill.  (N.  C.)  18; 

such   disposition   of   the   case   as   the  91  Am.   Dec.   92.     A  judgment  inad- 

rights  of  the  parties  might  require  ":  vertently  entered  by  the  clerk  will  be 

Capen  v.  Inhabitants  of  Stoughton,  16  stricken  out:  Merrick  v.  Baltimore,  43 

Gray,  365.    See  also  Stickney  v.  Davis,  Md.  219. 


135  VACATING   JUDGMENTS.  §  97 

When  the  writ  was  not  returned  until  two  months  after 
the  return  day,  and  the  judgment  was  entered  as  of  the 
same  day,  it  was  set  aside  as  irregular,  on  the  ground 
that  if  entered  before  the  return,  it  was  unauthorized; 
and  if  entered  subsequent  to  its  date,  it  was  a  false  record/ 
Judgments  prematurely  entered  by  default'^  and  those 
entered  after  the  death  of  a  party  ^  are  irregular,  and  may 
be  stricken  out  on  motion.  Taking  judgment  upon  a 
warrant  of  attorney  without  filing  a  copy  is,  in  Ohio,  such 
irregularity  as  authorizes  the  vacation  of  the  judgment 
after  the  term.*  Where  the  duty  of  plaintiff  required  him 
to  give  notice  of  the  taxing  of  costs,  and  he  failed  to  do 
so,  the  judgment  was  set  aside,  and  he  was  compelled  to 
give  a  notice  at  his  own  expense.^  The  irregularities 
which  have  been  treated  as  sufficient  to  justify  the  vaca- 
tions of  judgments  are  very  numerous,  and  it  is  not  possi- 
ble to  prescribe  any  test  by  which,  in  all  jurisdictions, 
to  determine  whether  or  not  a  particular  irregularity 
is  such  as  to  require  the  vacation  of  a  judgment.  When 
the  irregularity  does  not  go  to  the  jurisdiction  of  the  court, 
its  action  will  be  largely  controlled  by  the  promptness 
with  which  the  application  is  made,  and  by  the  consider- 
ation whether  or  not  the  irregularity  is  one  which  could 
have  operated  to  the  prejudice  of  the  applicant.®  Gener- 
ally, judgments  will  not  be  set  aside  after  the  lapse  of  the 
term,  on  account  of  mere  technical  defects,  such,  for  in- 
stance, as  that  the  name  of  the  defendant  was  not  correctly 
stated  in  the  summons,^  or  that  the  time  at  which  he  was 
to  appear  was  imperfectly  described,  where  he  could 
have  had  no  doubt  as  to  the  time  intended.®     The  follow- 

'  Graff  V.   M.  &  M.  Trans,  Co.,    18  Am.  St.  Rep.  547;  Holmes  v.  Honie, 

Mel.  HG4.  8  How.  Pr.  384. 

2  Mailhouse  v.   Inloes,   18  Md.  329;  ♦  Knox  Co.  Bank  v.  Doty,  9  Ohio  St. 

Browning  v.  Roane,  9  Ark.   354;   50  505;  75  Am.  Dec.  479. 

Am.   Dec.   218;  Branstetter  v.   Rives,  *  Fenton  v.  Garlick,  6  Johns.  288. 

34  Mo.  318;  Walters  v.  Walters,   132  ^  Stancill  v.  Gay,  92  N.  C.  455. 

111.  467.  '  Jones    v.    San   Francisco   Sulphur 

»  Bowen  V.  Troy  Mill  Co.,  31  Iowa,  Co.,  14  Nev.  172. 

460;  Grossman's  Appeal,    102  Pa.  St.  » Roberta    v.    Allman,     106    N.    0. 

137;  Knott  v.  Taylor,  99  N.  C.  511;  6  391. 


§  97  VACATING    JUDGMENTS.  13G 

ing  are  instances  of  the  vacation  of  judgments  for  irreg- 
ularity: Where  judgment  was  entered  as  by  default  when 
there  was  a  demurrer  on  file  and  not  disposed  of;^  where 
an  answer  had  been  filed  and  judgment  was,  notwdth- 
standing,  entered  by  default;^  where  creditors  who  were 
made  co-defendants  did  not  serve  their  answers  on  the 
parties  comj)laining,  nor  give  any  notice  of  the  trial,  and 
where,  also,  judgment  was  entered  by  default  against  a 
decedent  without  making  his  representatives  parties;^ 
where  the  cause  was  tried  by  a  judge  when  the  parties 
were  entitled  to  jury  trial ;^  where  there  was  a  failure  to 
give  notice  of  the  trial ;°  where  judgment  was  taken  against 
a  garnishee  without  serving  notice  of  the  garnishment  on 
the  principal  debtor;^  where  the  judgment  was  entered  by 
the  clerk  without  authority;'  where  judgment  on  a  joint 
contract  was  entered  against  a  part  only  of  the  defendants 
liable  thereon.®  Defects  in  the  process,  or  in  its  service, 
constitute  the  most  unquestionable  ground  for  the  vaca- 
tion of  judgments  after  the  lapse  of  the  term.  If  there  is 
an  entire  absence  of  service  of  process,  and  this  fact  appears 
by  the  record,  or  by  such  evidence  as,  under  the  prac- 
tice of  the  court  where  the  judgment  is  entered,  is  compe- 
tent, it  may  be  vacated  on  motion  at  any  time.®  Though 
process  was  served  in  some  manner  or  was  defective  in 
form,  and  the  judgment  is  not  therefore  absolutely  void, 
it  will  generally  be  vacated  on  motion,  as  where  the  sum- 
mons was  served  on  Sunday,  though  the  return  declared  it 
to  have  been  served  on  Monday,^*'  or  was  left  at  defendant's 
residence  with  a  person  who  did  not  reside  there,"  or  the 
notice  of  an  application  for  the  probate  of  a  will  was  pub- 
lished but  twice,  when  it  was  directed  to  be  published  three 
times,^^  or  the  summons  was  served  on  the  return  day.^^ 

'  Norman   v.  Hooker,   35  Mo.   366;  ^  Mullendove  v.  Silvers,  34  Ind.  98. 

Oliphant  v.  Whitney,  35  Cal.  25.  '  Smith  v.  Rollins,  25  Mo.  408;  Allen 

^  Knowles  v.  Fritz,  58  Wis.  216.  v.  Rogers,  27  Iowa,  106;  post,  sec.  98. 

s  Edwards  v.Woodroof,  90  N.  Y.  396.  "  Smith  v.  Noe,  .30  Ind.  117. 

*  Cowles  V.  Hayes,  69  N.  0.  406.  "  Hefifner  v.  Gunz,  29  Minn.  108. 
^  People  V.  Bacon,  18  Mich.  247.  **  In  re  Charlebois,  6  Mont.  373. 

*  Searle  v.  Fairbanks,  80  Iowa,  .307.  "  Simcock  v.  First  Nat.    Bank,   14 
'  Wharton  v.  Harlan,  68  Cal,  422.  Kan.  529. 


137  VACATING    JUDGMENTS.  §  98 

§  98.  Nullities.  — A  judgment  which  is  a  nullity  on  ac- 
count of  being  rendered  against  a  corporation  that  does 
not  exist  will  be  vacated  by  the  court  which  entered  it.^ 
And,  as  a  general  rule,  all  void  judgments  will  be  so 
treated.^  In  a  case  in  South  Carolina,  the  court  asked 
itself  this  pertinent  question:  "Should  the  court  whose 
process  is  abused  by  an  attempt  to  enforce  a  void  judg- 
ment interfere,  for  its  own  dignity  and  for  the  protection 
of  its  officers,  to  arrest  further  action?"  and  answered 
itself  by  saying:  "Certainly,  on  proper  application."'  In 
New  York,  judgment  was  vacated  on  motion,  on  the  ground 
that  the  summons  was  served  by  publication,  and  the 
record  did  not,  on  its  own  face,  show  sufficient  facts  to 
confer  jurisdiction  upon  the  court.*  In  most  of  the  states, 
a  judgment  will  be  set  aside,  though  procured  according 
to  the  ordinary  forms  of  practice,  upon  showing  a  want 
of  jurisdiction  over  the  person  of  the  judgment  debtor.^ 
This  has  been  done  in  cases  of  appearance  made  by  un- 
authorized attorneys,  upon  showing  by  affidavits  the  want 
of  authority  in  those  persons,  and  that  the  defendant  did 
not  know  of  their  action  in  his  name  when  it  occurred. 
The  courts  have  acted  in  these  cases  without  inquiring 
whether  the  attorneys  were  solvent  or  insolvent;^  but  in 
this  respect  they  probably  disregarded  the  current  of  the 
authorities.  While  it  is  universally  conceded  that  a  judg- 
ment void  for  want  of  jurisdiction  over  the  person  of  the 
defendant  may  be  vacated  on  motion,  irrespective  of  the 
lapse  of  time,^  there  is,  as  we  shall  hereafter  show,  a  wide 

»  City  of  Olney  v.  Boyd,  50  111.  453.  12;  McKelway  w.  Jones,  17  N.J.  L.  345; 

2  Fonnan  v.  Carter,  9  Kan.  674;  12  Kenyon  v.  Shreck,  52  111.  382;  Latnner 

Am,    Law    Rep.   GO;    Hervey   v.    Ed-  v.    Latimer,   22   S.    0.    257;    Vihis   v. 

munds  6SN.C.  243;  Winsloww.  Ander-  Plattsburgh  etc.  R.  R.  Co.,  12.,  JN.  y. 

soa    3  Dev.  &  B.  9;  32  Am.  Dec.  651;  440;  20  Am.  St.  Rep.  771;  Bradley  v. 

Outhwite    V.    Porter,    13    Mich.    533;  Welch,  100  Mo.  258;  Winters?'.  Means, 

Pantall  v.  Dickey,  123  Pa.  St.  431.  25   Neb.  274;    13   Am.  St.  Rep.  489; 

»  Mills  &  Co.  V.  Dickson,  6  Rich.  487.  Woods  v.  Dickinson,  7  Mackey,  301. 

♦Hallettv.  Righters,  13How.  Pr.43.         '  People  r.  Greene,  74   Cal.   103;   5 

»  Shuford   V.  Cain,  1  Abb.  302;   In  Am.  St.  Rep.  448;  People  v.  Mullan, 

re  College  Street,  11  R.  I.  472;  Cotton  65   Cal.  396;   Ladd  v.   Mason,   10  Or. 

V    McGehee,  54  Miss.  621;   Pettua  v.  308;   People  v.  Pearson,  76   Cal.  403; 

McClanahaii,  52  Ala.  55.  Kx  parte  Crenshaw,  15  Pet.  119;  Mills 

«  Yates  V.  Horanson,  7  Rob.  (N.  Y.)  v.  Dickson,  6  Rich.  487;  State  w.Wau- 


§  98  VACATING   JUDGMENTS.  138 

divergence  of  opinion  as  to  what  judgments  are  void  for 
this  reason,  and  as  to  whether  a  motion  to  vacate  a  judg- 
ment is  a  direct  attack  upon  it  so  as  to  warrant  the  reception 
of  evidence  not  found  in  the  record,  and  perhaps  incon- 
sistent with  that  which  is  to  be  found  there.  Where  an 
appellate  court  has  deliberately  determined  that  it  had 
jurisdiction  over  the  subject-matter  of  an  action,  it  will 
perhaps  refuse,  at  a  subsequent  term,  though  convinced 
that  its  former  conclusion  was  erroneous,  to  vacate  its 
judgment  for  want  of  such  jurisdiction.'  Unless  this  ex- 
ception be  sustainable,  we  believe  the  decided  preponder- 
ance of  authority  justifies,  or  rather  requires,  a  court,  on 
motion  being  made  to  vacate  its  judgment  because  it  was 
without  jurisdiction  over  the  person  or  the  subject-matter, 
to  inquire  whether  such  was  the  fact,  and  if  so,  to  grant 
the  relief  sought.  It  is  true  that  the  supreme  court  of 
California  has  very  recently  apparently  decided  that  a 
motion  to  vacate  a  judgment  cannot  be  granted  unless 
the  record  upon  its  face  discloses  a  want  of  jurisdiction, 
and  that  though  the  record  shows  that  the  service  of 
summons  was  apparently  constructive,  and  was  made  un- 
der circumstances  not  warranting  such  service,  yet  that 
a  judgment  cannot  be  vacated  if  it  contains  a  recital  that 
the  defendants  "were  regularly  served  with  process  as 
required  by  law,"^  though  in  previous  cases  the  same 
court  had  unquestionably  authorized  the  reception  of  evi- 
dence not  found  in  the  judgment  roll,  and  had  declared 
that  motions  to  vacate  judgments  were  direct  and  not  col- 
lateral attacks.^  In  Alabama,  the  rule  is  also  enforced  that 
before  a  judgment  can  be  vacated  after  the  term,  for  want 
of  jurisdiction,  its  invalidity  must  appear  on  the  face  of 
the  record.'*     When  a  motion  to  vacate  a  judgment,  on 

paca  Co.  B..  20  Wis.  640;  Wharton  v.  ^  State   v.    Waupaca  Co.    Bank,  20 

Harlan,  68  Cal.  442;  Noreman  v.  Car-  Wis.  640. 

ter,  9  Kan.  674;  Hanson  v.  Wolcott,  ^  People   v.  Harrison,  84   Cal.  607; 

19  Kan.  207;   Bruce  v.  Strickland,  47  People  v.  Goodhue,  80  Cal.  199. 

Ala.   192;   Baker  v.  Barclift,  76    Ala.  ^  People    v.    Mullan,    65    Cal.    396; 

414;  Crane?;.  Barry,  47  Ga.  476;  Olney  People  v.  Pearson,  76  Cal.  400. 

V.  Harvey,  50  111.  453;  99  Am.  Dec.  630.  *  Pettus  v.  McClanahan,  52  Ala.  55. 


139  VACATING   JUDGMENTS.  §  98 

the  ground  that  defendant  had  never  been  served  with 
process,  is  made,  It  is  doubtless  incumbent  on  the  moving 
party  to  clearly  prove  his  case;^  but  to  hold  that  he  must 
establish  it  by  the  record  is  to  deny  him  relief  in  all  cases 
in  which  relief  is  necessary;  for  if  a  judgment  record  pro- 
claims its  own  invalidity,  it  must  be  denied  effect  every- 
where, and  it  is  of  little  or  no  consequence  whether  it  is 
formally  set  aside  or  not.  Generally,  though  there  is  a 
return  showing  that  process  was  served,  this  return  may 
be  contradicted  on  motion  to  vacate  the  judgment  and 
the  motion  granted,  if  notwithstanding  the  return  the 
court  is  convinced  that  it  had  not  acquired  jurisdiction 
over  the  defendant.^  So  far  as  the  cases,  or  any  of  them^ 
affirm  that  a  motion  to  vacate  a  judgment  is  a  direct  at- 
tack thereon,  and  may  therefore  be  supported  by  evidence 
not  admissible  on  a  collateral  attack,  we  think  them  erro- 
neous. Judgment  having  been  entered  in  an  apparently 
legal  manner,  and  the  jurisdiction  of  the  court  not  being 
retained  by  any  motion  or  proceeding  taken  either  during 
the  term  or  within  the  time  allowed  by  some  statute,  the 
court  loses  all  control  over  the  action  and  the  parties 
thereto,  and  its  subsequent  interference  to  vacate  its  judg- 
ment can  only  be  justified  on  the  ground  that  the  judg- 
ment might  be  avoided  in  any  collateral  proceeding,  and 
for  that  reason  to  permit  it  to  stand  unvacated  may 
probably  cause  innocent  parties  to  purchase  titles  based 
thereon,  or  to  be  otherwise  deluded  by  it.  If  the  defend- 
ant has  not  been  served  with  process,  or  otherwise  brought 
within  the  jurisdiction  of  the  court,  he  has  been  denied 
due  process  of  law.  Whether  he  has  been  so  denied  or 
not  is  a  question  to  be  determined  by  the  national  courts, 
and  their  determination,  when  known,  should  be  and 
generally  is  followed  by  state  courts.'  If  the  judgment 
cannot  be  enforced  without  depriving  the  defendant  of 

^  Hunt  V.  Childress,  5  Lea,  247.  Plattsburf,'h  etc.  R.  R.  Co.,  12.3  N.  Y. 

2  Hanson  v.  Wolcott,   19   Kan.  208;  440;   20  Am.  St.  Rep.  771;   Parker  v. 

Carr  v.  Commercial  Bank,  16  Wis.  50;  Spencer,  61  Tex.  155. 
HefiFner  v.  Gunz,  29  Minn.  lOS;  Stan-         »  Belcher  v.  Chambers,  53  Cal.  635. 
cill  V.  Gay,  92  N.  C.  455;    Vilas  v. 


§  99  VACATING   JUDGMENTS.  140 

due  process  of  law,  it  should  not  be  enforced  at  all,  but 
treated  as  void,  and  because  void,  vacated  on  motion,  and 
thereby  deprived  of  its  falsely  assumed  form  of  a  judicial 
determination.  A  judgment  entered  while  an  order  of 
reference  is  unexecuted  is  an  irregularity,  and  will  there- 
fore be  vacated  at  any  time.'  And  a  judgment  against 
an  infant  who  did  not  appear  by  guardian  stands  on  the 
same  footing.^  Where  the  court  ordered  a  case  to  stand 
over  and  to  be  continued  for  argument,  and  the  clerk,  by 
mistake,  entered  judgment  on  the  verdict,  and  issued  exe- 
cution, the  judgment  was  set  aside  and  the  execution 
quashed  at  the  next  term,  on  motion.^ 

§  99.  For  Fraud.  —  The  maxim  "  that  fraud  vitiates 
everything"  is  applicable  to  judgments.  Whether  the 
maxim  is  to  be  given  effect  on  motions  to  vacate  them  is 
more  doubtful.  In  many  instances  judgments  have  been 
vacated  for  fraud  in  their  procurement,  upon  motions 
made  after  the  lapse  of  the  term  at  which  they  were 
entered;*  but  we  judge  the  safer  practice  is  to  require  re- 
lief to  be  sought  by  suits  in  equity.*  Even  in  the  case  of 
decrees  of  divorce  they  have  been  vacated  on  motion  for 
fraud,  nor  have  the  courts  hesitated  to  do  so  even  after 
marriages  have  been  contracted  in  reliance  upon  the 
fraudulent  decree,  and  one  of  the  parties  was  innocent  of 
all  complicity  in   or  knowledge   of  the  fraud,^     On  the 

'  Stacker  v.  Cooper   Circuit   Court,  ^  Olmstead   v.  Olmstead,  41    Minn. 

25  Mo  401.  297;  Young  v.  Young,   17  Minn.   181; 

2  Keaton  v.  Banks,  10  Ired.  381;  Allen  v.  McClellan,  12  Pa.  St.  .S28;  51 
51  Am.  Dec.  303.  Am.  Dec.  60S.     The  courts  in  Massa- 

3  United  States  v.  McKnight,  1  chusetts  also  exercise  the  power  of 
Cranch  C.  C.  84.  vacating  judgments  after  the  lapse  of 

♦  Cannan  v.    Reynolds,  5  El.  &   B.  the  term.     In  a  recent  case  a  decree 

301;  Phillipson  v.  Earl  of  Egremont,  6  of  divorce  was  vacated  upon  petition 

Ad.    &  E.,  N.  S.,    587;   Mcintosh   v.  addressed  to  the  court,  showing  that  a 

Commissioners,    13  Kan.    171;   In  re  decree  had  been  obtained  at  a  former 

Fisher,  15  Wis.  511;  Dial  v.  Farrow,  1  term  against  petitioner  on  false  testi- 

McMu'll.  292;  36  Am.  Dec.  267;  Taylor  mony,  on  a  libel  of  which  she  had  no 

V.  Sindall,  34  Md.  38;  Pyett  v.  Hat-  notice,  and  of  which  actual  knowledge 

field,  15  Lea,  473.  was  kept  from  her  by  the  other  party, 

^  Syme  v.  Trice,  96  N.  C.  243;  Fow-  and  that  the  jurisdiction  of  the  court 

ler   V.    Poor,  93  N.  C.  466;    Sharp  v.  was  founded  on  a  false  allegation  of 

Danville  M.  &  S.  W.  R.  R.  Co.,   106  domicile:  Edson  v.   Edson,  108  Mass. 

N.  C.  308;  19  Am.  St.  Rep.  533.  590;  1 1  Am.  Rep.  393. 


141  VACATING   JUDGMENTS.  §  100 

other  hand,  there  are  courts  which  deny  the  right  to 
vacate  decrees  of  divorce  for  fraud,  though  under  the  cir- 
cumstances they  would  order  the  decrees  vacated  if  they 
did  not  involve  the  marital  status  of  parties.^ 

§  100.  Vacating  Decrees,  —  In  relation  to  decrees,  there 
seems  to  be  no  doubt  that  the  power  of  the  court  to  dis- 
charge the  enrollment  and  open  the  decree  never  ter- 
minated unless  there  had  been  a  regular  trial  on  the 
merits.  The  general  rule  "that  a  decree  once  enrolled 
cannot  be  opened  except  by  bill  of  review,  or  by  an  ori- 
ginal bill  for  fraud,  is  subject  to  well-founded  exceptions, 
arising  in  cases  not  heard  upon  the  merits,  and  in  which 
it  is  alleged  that  the  decree  was  entered  by  mistake  or 
surprise,  or  under  such  circumstances  as  shall  satisfy  the 
court,  in  the  exercise  of  a  sound  discretion,  that  the  decree 
ought  to  be  set  aside.^  The  decree  in  such  cases  being  by 
default,  the  cause  of  the  default  can  never  be  the  subject 
of  inquiry  until  the  decree  has  been  pronounced,  and 
generally  not  until  after  the  term  has  passed.  Without 
the  exercise  of  this  power  in  the  court  to  vacate  the  en- 
rollment, a  party  against  whom  a  decree  had  been  enrolled 
by  mistake  or  surprise,  and  without  any  laches  on  his  part, 
would  be  without  redress.  A  bill  of  review  would  be  of 
no  avail,  because  his  claim  to  relief  is  not  based  on  error 
apparent  on  the  face  of  the  decree,  nor  on  account  of 
newly  discovered  evidence;  and  unable  to  charge  fraud 
in  obtaining  the  decree,  he  would  be  unable  to  reverse  it 
on  that  ground.  Accordingly,  it  is  laid  down  by  the  most 
eminent  elementary  writers,  and  fully  sustained  by  the 
adjudged  cases,  that  when  a  case  has  not  been  heard  on 
the  merits  the  court  will,  good  cause  being  shown,  exer- 
cise a  discretionary  power  of  vacating  an  enrollment,  and 
giving  the  party  an  opportunity  of  having  his  case  dis- 
cussed."    The  fact  that  the  merits  of  the  case  were  never 

»  Parish  v.  Parish,  9  Ohio  St.  534;  «  Cawley  v.  Leonard,  28  N.  J.  Eq. 
75  Am.  Dec.  482;  Lewis  v.  Lewis,  15  4G7;  Smith  v.  Alton,  22  N.  J.  Eq. 
Kau.  181.  572. 


§  100  VACATING  JUDGMENTS.  142 

before  the  court  seems  to  be  the  controlling  one  in  all 
applications  for  the  exercise  of  this  discretionary  power. 
Therefore,  where  the  decree  is  perfectly  regular  so  far  as 
regards  the  appearance  of  the  parties,  and  is  in  confor- 
mity with  the  general  practice,  it  may  be  vacated  at  the 
discretion  of  the  court,  upon  a  showing  of  mistake,  acci- 
dent, or  surprise,  or  of  negligence  of  the  solicitor,  by  which 
the  decision  on  the  merits  was   prevented;'  or  that  the 
merits  of  the  case  were  not  presented  to  the  court,  on  ac- 
count of  the  guardian  ad  litem  appointed  for  an  infant, 
not  sufficiently  understanding  the   matters   constituting 
his  defense.^     Principles  about  as  ample  and  liberal  as 
those  recognized  at  equity,  upon  application  to  vacate  de- 
crees, seem  to  be  applied  to  judgments  in  the  courts  of 
Maryland  and  Michigan,     The  courts  of  the  former  state 
vacate  judgments  upon  clear  proof  of  fraud,  surprise,  or 
irregularity,^  while  those  of  the  latter  state  relieve,  upon 
motion,   irrespective   of  the   question  whether  the  term 
has  passed,  all  who  have  suffered  from  inability  to  make 
their  defense.''    And  in  England,  little,  if  any,  more  strin- 
gency is  applied  to  applications  made  after  than  to  those 
made  during  the  term.     In  Cannan  v.  Reynolds,^  the  court 
set  aside  a  judgment  by  default  on  application  of  plaintiff, 
on  the  ground  of  mistake  on  his   part  in  including  de- 
mands in  the  judgment  which  were  due  from  others  than 
the  defendants,  and  in  excluding  equal  amounts  due  from 
defendants,  whereby,  if  the  judgment  was  not  set  aside, 
the  plaintiffs  would  be  prejudiced.     The  court  thought  it 
had  power  to  set  aside  a  judgment,  at  any  time,  in  its  dis- 
cretion; and  stated  that  it  was  in  the  habit  of  doing  so 
every  day,  even  after  execution  executed,  and  without  in- 
quiring whether  it  was  in  term  or  not.     In   Illinois,  a 

1   2    Daniell's     Chancery    Practice,  626;  Robson  v.  Cranwell,   1  Dick.  61; 

1230;  2  Maddox's  Chancery  Practice,  Beekman  v.   Peck,  3  Johns.  Ch.  415; 

466;  Herbert  v.  Rowles,  30  Md.  271;  Bennett  w.  Winter,  2  Johns.  Ch.  205. 

Kemp  V.  Squires,  1  Ves.  Sr.  205;  Mills-  '  Curtis  v.  Ballagh,  4  Edw.  Ch.  635. 

paugh  V.   McBride,  7  Paige,  509;    34  *  Hall  v.  Holmes,  30  Md.  558. 

Am.  Dec.  360;  Erwin  v.  Vint,  6  Munf.  *  Loreen  Reeves,  2  Mich.  133;  Hurl- 

267;  Carter  v.  Torrance,   11  Ga.  654;  burt  v.  Reed,  5  Mich.  30. 

Hargrave   v.    Hargrave,    9   El.    &   E.  ''  5  El.  &  B.  301. 
14;  Benson  v.   Vernon.   3  Bro.  P.   C. 


143  VACATING    JUDGMENTS.  §§  101,  101  a 

judgment  confessed  by  attorney  was  vacated  on  the  ground 
that  usury  entered  into  the  consideration  upon  which  the 
confession  was  made.  This  action  was  said  to  be  war- 
ranted by  the  practice  in  England,  though  not  by  that  of 
some  of  the  United  States.* 

§  101.  Error  as  a  Ground  for.  —  But  neither  a  final 
judgment  nor  a  final  decree,  pronounced  upon  a  hearing 
on  the  merits,  can  be  set  aside  after  the  term,  upon  mo- 
tion, for  any  errors  into  which  the  court  may  have  fallen. 
The  law  does  not  permit  any  judicial  tribunal  to  exercise 
a  revisory  power  over  its  own  adjudications,  after  they 
have,  in  contemplation  of  the  law,  passed  out  of  the 
"breasts  of  the  judges."  ^  That  a  judgment  was  rendered 
upon  default,  upon  considering  evidence  offered  by  plain- 
tiff, for  a  sura  much  larger  than  that  evidence  warranted, 
is  not  a  ground  for  vacating  the  judgment.  The  matter 
complained  of  is  attributable  to  an  error  of  the  court, 
which  might  have  happened  if  the  defendant  had  been 
present  at  the  trial.^  Neither  is  an  error  or  misapprehen- 
sion of  the  parties,  nor  of  their  counsel,  any  justification 
for  vacating  the  judgment,  although  the  counsel  consented 
to  it  because  deceived  by  fraudulent  misrepresentations 
of  third  parties,'*  or  failed  to  attend  the  trial  on  account 
of  a  misapprehension  as  to  the  time  of  holding  court.* 

§  101  a.  Vacating  Judgments  against  Minors.  —  Acting 
under  the  assumption  that  the  remedy  by  motion  to 
vacate  judgments  has  taken  the  place  of  that  by  writ  of 
error  coram  nobis,  and  that  it  may  accomplish  all  the  pur- 
poses formerly  realized  by  that  writ,  and  that  among  these 
was  the  correcting  of  errors  of  fact,  the  courts  of  some  of 

1  Fleming  v.  Jencks,  22  111.  475.  Wis.  2G2;  Brown  v.   Bennett,  55  Ga. 

'  Charman  v.  Charman,   16  Ves.  Jr.  189. 

115;    Assignees  v.    Dorsey,    2   Wash.  =*  Green  u  Hamilton,  16  Md.  317;  77 

C.  C.  433;  Bank  of  U.  S.  v.  Moss,  6  Am.  Dec.  295. 

How.  31;  Peake  v.  Redd,   14  Mo.  79;  *  Murphy    v.    Merritt,    63    N.    C. 

McBride  v.  Wright,  75  Wis.  306;  Brett  502. 

V.  Myers,  65  Iowa,  274;  State  v.  Hor-  *  Harljor  v.   Pacific  R.   R.   Co.,   32 

ton,  89  N.  0.  581;  Loomis  v.  Rice,  37  Mo.  423. 


§   101  b  VACATING   JUDGMENTS.  144 

the  states  have,  on  motion,  after  the  lapse  of  the  term, 
vacated  judgments  against  minors  when  the  fact  of  their 
minority  was  not  known  to  the  court  when  it  rendered 
judgment,  and  they  did  not  appear  by  guardian.^  If  this 
remedy  be  conceded  to  be  proper,  it  is  obvious  that  when 
minors  are  regularly  served  wdth  process  they  must  seek 
redress  within  a  reasonable  time  after  attaining  their 
majority,  otherwise  their  delay  will  preclude  their  obtain- 
ing relief.^ 

§  101  b.    Exceptional  Instances  of  Vacating  Judgments. 

—  Various  instances  have  occurred  in  which  judgments  . 
have  been  vacated   after  the  expiration  of  the  term    at 
which  they  were  entered,  when  there  was  no  irregularity 
in  their  entry,  and  in  which  the  action  of  the  court  in 
vacating  them  can  hardly  be  justified  except  on  the  broad 
assumption  that  it  has  a  right,  upon  motion,  to  prevent 
any  w'rong  which  might  otherwise  be  perpetrated  by  the 
aid  of  its  judgments.     Among  these  may  be  mentioned 
the  vacation  of  a  judgment  because  it  imposed   a  fine 
which  the  governor  had  afterwards  remitted;*"'  because  the 
judgment  was  by  default,  and  payments  made  by  the  de- 
fendant had  not  been  allowed;^  or  was  upon  a  note  appar- 
ently barred  by  the  statute  of  limitations;^  or  was  confessed 
by  warrant  of  attorney  in  consideration  of  the  stifling  of  a 
prosecution  for  forgery.^    The  judgments  vacated  in  these 
instances  were,  generally,  either  by  default  or  upon  con- 
fession, and  their  vacation  probably  proceeded  upon  the 
ground  that  judgments  of  the  classes  to  which  they  be- 
longed were  always  within  the  control  of  the  court.     Fre- 
quently, facts  arise  after  the  entry  of  a  judgment  which 
render  its  execution  clearly  inequitable,  and  where  there 

I  Powell   V.   Gott,    13   Mo.    458;   53  ^  Chisholm  v.  State,  42  Ala.  527. 

Am.  Dec.  153;  Randalls  v.  Wilson,  24  *  United    States    v.    Millinger,     17 

Mo.   76;    Levy  v.   Williams,   4  S.    C.  Blatchf.  451. 

515;  Townsend  v.   Cox,   45  Mo.   401.  "  Ellinger's    Appeal,     114     Pa.    St. 

See  Dig.  Stats.  Ark.    1884,  sec.  3909;  505. 

Rev.  Stats.  Ohio  1880,  sec.  5354.  «  Bredin's  Appeal,  92  Pa.  St.  241:  37 

■■'  Eisenmenger  v.  Murphy,  42  Minn.  Am.  Rep.  677. 
84;  18  Am.  St.  Rep.  493. 


145  VACATING  JUDGMENTS.  §  102 

is  no  mode  of  procuring  redress  by  appeal  or  motion  for 
new  trial,  or  other  revisory  proceeding.  The  remedy  for 
such  cases  at  the  common  law,  as  we  have  heretofore 
shown,  was  by  audita  querela.  Though  that  remedy  lias 
fallen  into  disuse,  its  purpose  may,  in  many  jurisdictions, 
be  accomplished  by  motion  to  vacate  the  judgment  when 
facts  occurring  since  its  rendition  make  its  enforcement 
inequitable.^  Hence,  where  a  judgment  was  based  upon 
a  previous  judgment,  and  the  latter  was  subsequently  re- 
versed, it  was  held  that  relief  might  be  obtained  from  the 
second  judgment  by  motion  to  vacate  it.'^ 

§  102.  Merits,  and  Want  of  Laches.  — The  most  worthy 
object  attained  by  the  granting  of  motions  to  vacate  judg- 
ments is  that  of  allowing  a  full  investigation  of  the  mat- 
ters in  controversy,  in  order  that  a  disposition  of  the  case, 
according  to  the  merits,  may  be  made.  Whenever  that 
object  does  not  appear  to  be  the  one  sought,  an  applica- 
tion based  on  mere  irregularity  of  proceeding  will  be 
treated  with  no  favor.^  The  rules  will  be  strictly  applied, 
and  any  laches  shown  against  the  moving  party  will  prove 
fatal  to  his  desires.'*  But  what  delay  necessarily  amounts 
to  laches  is  uncertain.  In  an  early  case  in  New  York, 
eight  days'  notice  of  trial  being  given,  when  the  defend- 
ant was  entitled  to  fourteen  days'  notice,  he  treated  it  as 
void,  and  judgment  was  given  against  him.  A  subsequent 
motion  based  on  the  irregularity,  made  after  the  inter- 
vention of  a  full  term,  was  considered  too  late.®     In  the 

^Weaver   v.   Mississippi    and   Rum  without    requiring    any    showing    of 

River  Boom  Co.,  30  Minn.  477;  Chis-  merits:  Hanson  v.  Wolcott,   19  Kan. 

holm  V.  State,  42  Ala.  527.  207. 

2  Etna  Ins.  Co.  v.  Aldrich,  38  Wis.  *  Kerr  v.  Bowie,  3  U.  C.  L.  J.   UO; 

107;  Heckling  v.  Allen,  15  Fed.  Rep.  Cagger  v.  Gardiner,   1  How.   Pr.  142; 

196.  Ammcrman  v.  State,  98  Ind.  165;  Mc- 

^  But  in  Missouri,  if  a  judgment  be  Cormick  v.  Hogan,  48  Md.  404;  San- 

"  irregularly  obtained  against  the  pro-  derson  v.  Dox,  6  Wis.  164;  Altman  v. 

visions  of  a  statute  or  the  rules  of  a  Gabriel,  28  Minn.  132;  Foster  v.  Haus- 

court,  a  party  is  entitled  to  have  it  set  writh,  5  Mout.  566;  Williams  v.   Bu- 

aside  without   showing  any  merits ":  chanan,  75  Ga.  789;  Leo  ?>.  Basey,  85 

Doan  V.  Holly,  27  Mo.  256.     See  also  Ind.  543;  Nicholson  v.  Nicholson,  113 

Hughes  V.  Wood,  5  Duer,  603,  note.  Ind.  131. 

If  the  judgment  be  void  for  want  of  ^  McEvers  v.  Markler,  1  Johns.  Caa. 

jurisdiction,  the  court  will  set  it  aside  248. 
JUDG.  I.  — 10 


§  102  VACATING   JUDGMENTS.  146 

same  state,  a  third  of  a  century  later,  an  application  based 
on  an  irregularity,  in  giving  too  short  a  notice  of  an 
inquisition  on  a  writ  of  inquiry,  made  after  lapse  of  two 
special  terms,  was  refused,  because  "as  this  was  an  at- 
tempt to  deprive  the  plaintiff  of  his  judgment  on  the 
ground  of  a  mere  irregularity,  the  defendant  would  be 
held  to  the  strictest  rules  of  proceeding,  and  having  been 
guilty  of  laches  in  making  his  motion,  he  was  not  entitled 
to  be  heard."  *  This  decision  has  been  indorsed  in  Wis- 
consin, by  holding  that  a  short  notice  being  suflQcient  to 
put  a  party  upon  inquiry,  he  must  ascertain  whether  his 
adversary  proceeds  to  judgment  upon  it;  that  a  motion 
to  set  aside  such  judgment,  there  being  no  pretense  of 
merits,  must  be  made  at  the  same  term,  unless  he  can  show 
some  good  cause  for  his  delay;  and  that  where  defendant 
waited  more  than  two  months,  and  until  the  expense  of 
advertising  real  estate  for  sale  had  been  incurred,  he 
waived  the  irregularity.^  The  defendant  must  not,  ac- 
cording to  some  of  the  authorities,  take  any  step  in  the 
case  after  the  irregularity  occurs,  or  it  will  be  deemed  a 
waiver.  Thus  where  an  appeal  was  taken  because  no 
notice  of  the  motion  for  judgment  was  served,  and  the 
appellate  court  declined  to  interfere,  on  the  ground  that 
the  appropriate  remedy  was  by  motion  to  vacate  the  judg- 
ment, and  the  defendant  then  applied  in  the  court  where 
judgment  was  rendered  to  have  it  set  aside,  the  taking  of 
the  appeal  was  deemed  to  be  such  a  proceeding  as  pre- 
cluded him  from  taking  advantage  of  the  irregularity.' 
It  is  said  in  England  that  the  true  rule  is,  that  if  there  be 
an  irregularity,  the  party  suffering  by  it  is  not  bound  to 
have  it  set  aside  in  any  specific  time;  that  he  may  reason- 
ably presume  that  his  adversary,  discovering  the  error, 
will  abandon  the  defective  proceeding.  But  if  the  ad- 
versary take   one  step  more,  showing  that    he  has    not 

•  Nichol3  V.  Nichols,  10  Wend.  560.         '  Jenkins     v.     Eaterly,     24     Wis. 

*  Etna  Life  Insurance  Co.  v.  McCor-     340. 
mick,  20  Wis.  265. 


147  VACATING   JUDGMENTS.  §  103 

abandoned  liis  process,  then  the  movement  to  have  the 
irregularity  set  aside  must  be  commenced.'  An  infant 
having  confessed  judgment  by  attorney,  and  permitted  it 
to  stand  until  six  years  after  coming  of  age,  the  court 
held  that  his  application  to  vacate  it  came  too  late.^  If 
the  ground  of  the  motion  is,  that  the  court  did  not  have 
jurisdiction  of  the  defendant,  and  that  the  judgment  is 
therefore  void,  the  court  will  act  irrespective  of  lapse  of 
time,  if  it  finds  that  the  facts  are  such  as  to  sustain  the 
motion.^ 

§  103.  Notice  of  Application.  —  During  the  term  at 
which  a  judgment  was  rendered,  the  power  of  the  court 
over  it  is  so  absolute  that  it  may  vacate  it  on  its  own 
motion,  and  whether  on  its  own  motion  or  not,  without 
requiring  notice  to  be  given  to  the  party  to  be  affected  by 
its  order.*  At  the  close  of  the  term,  the  parties  are  dis- 
missed sine  die,  and  can  no  longer  be  regarded  as  being 
in  court.  Proceedings  taken  after  that  time,  to  set  aside 
a  judgment,  must  therefore  be  upon  notice  to  all  the 
parties  affected,^  and  the  order  of  a  court  acting  in  the 
absence  of  such  notice  will  be  reversed  upon  appeal.® 
Notwithstanding  the  retainer  of  an  attorney  ordinarily 
terminates  with  the  entry  of  final  judgment,  a  motion 
to  vacate  the  judgment  may  be  served  on  him,  and  when 
so  served,  gives  the  court  jurisdiction  to  dispose  of  the 
motion.' 

1  Fletcher  v.  Wells,  6  Taunt.  191.  Coleman  v.   McAnulty,    16   Mo.    173; 

*  Kemp  V.  Cook,  18  Md,  130;  79  57  Am.  Dec.  229;  Burnside  v.  Ennis, 
Am.  Dec.  681.  43  Ind.  411;  Bajourine  v.  Ramelli,  34 

*  Vilas?;.  Plattsburgh  etc.  R.  R.  Co.,  La.  Ann.  554.  Hence  if  property  has 
123  N.  Y.  440;  20  Am.  St.  Rep.  771;  been  sold  under  the  judgment,  the 
Feikert  v.  Wilson,  38  Minn.  341;  court,  before  hearing  a  motion  to  vacate 
Thompson  v.  Thompson,  73  Wis.  84;  it,  will  require  notice  to  be  given  the 
Stocking  V.  Hanson,  35  Minn.  207;  purchaser:  Molloy  v.  Batchelder,  69 
Wharton  v.  Harlan,  68  Cal.  422;  Mo.  503;  Hettrick  v.  Wilson,  12  Ohio 
Koonce  v.  Butler,  84  N.  C.  221;  ante,  St.  130;  80  Am.  Dec.  337;  Nuckolls  v. 
sec.  88.  Irwin,  2  Neb.  60. 

*  Rich    V.    Thornton,    69   Ala.    473;  «  Vallejo  v.  Green,  16  Cal.  160. 
Desrihes  v.   Wilmer,    69  Ala.    25;   44  '  Branch  v.   Walker,   92  N.   C.   87; 
Am.  Rep.  501;  Lake  v.  Jones,  49  Ind.  Lee  v.  Brown,  6  Johns.   132;  Doane  v. 
297.  Glonn,    1   Col.   454;   Beach   v.   Beach, 

*  Lane  v.    Wheless,    46   Miss.    666;  Dakota  (1889). 


§§  104,  104  a      VACATING  JUDGMENTS.  148 

§  104.  Conditional  Vacation.  —  Where  the  circuit  court 
made  an  order  setting  aside  a  judgment  upon  payment  of 
the  costs  which  had  accrued,  the  neglect  of  plaintiff's 
counsel  to  insist  upon  their  payment  impliedly  waived 
the  condition  upon  which  the  judgment  was  to  be  vacated, 
and  he  could  not  therefore  proceed  upon  the  judgment 
as  still  in  force.^  In  Alabama,  an  order  that  a  cause  stand 
dismissed  unless  plaintiff,  within  one  hundred  and  twenty 
days,  answer  certain  interrogatories  is  not  considered  a 
final  order.  It  was  said  that  the  matter  still  remained  in 
the  control  of  the  court;  that  it  was  competent  for  the 
court  at  a  subsequent  term  to  modify  or  vacate  the  order; 
that  the  order  could  not  become  effective  until  the  hap- 
pening of  the  contingency  was  judicially  ascertained  at 
the  next  term.'^  The  courts  of  the  same  state  hold  that 
an  order  setting  aside  a  judgment  upon  payment  of  costs 
is  a  conditional  order,  dependent  upon  the  payment  being 
made,  and  that  it  may  be  set  aside  at  any  subsequent  term 
prior  to  the  compliance  with  its  condition.^  In  this  opin- 
ion they  are  probably  in  error.* 

§  104  a.  The  Entry  of  a  Second  Judgment  may  follow 
the  vacation  of  the  first  in  proper  circumstances.  The 
party  in  whose  favor  a  judgment  has  been  entered  irregu- 
larly may,  after  it  has  been  vacated,  proceed  as  if  it  had 
never  been  rendered,  and  in  due  time  and  upon  proper 
proceedings  obtain  a  valid  judgment.'  But  the  entry  of  a 
second  judgment  has  been  held  not  to  operate  as  a  vaca- 
tion of  the  first.  In  a  case  arising  in  Nebraska,  the  record 
showed  the  entry  of  two  judgments  in  the  same  action  at 
different  dates.  Speaking  of  this  state  of  facts,  the  court 
said:  "But  as  there  can  be  but  one  final  judgment  in  a 

'  Ransom  v.  City  of  New  York,  20  must   comply  with  the   condition,  or 

How.  581.  the  grant  of  relief  is  inoperative:  Haxt- 

2  Ex     parte     McLendou,     33     Ala.  man  v.  01  vera,  49  Cal.  101. 

276.  *  Dana  v.  Gill,  5  J.  J.   Marsh.  242; 

*  Willis  V.  Bank  of  Mobile,  19  Ala.  20  Am.  Dec.  255;  Johnson  v.  Taylor, 

141.    And  generally,  if  relief  be  granted  3  Smedes  &  M.  92. 

upon    certain    conditions,    the    party  *  Moore  v.  Haskina,  66  Miss.  496l 


149  VACATING   JUDGMENTS.  §  104  b 

cause,  we  have  the  question,  Which  is  the  judgment  in  the 
case?  That  seems  to  be  not  a  very  difficult  question. 
When  a  judgment  is  once  entered  of  record  it  must  stand 
as  the  judgment  until  it  is  vacated,  modified,  or  disposed 
of  by  some  means  provided  b}''  law;  entering  additional 
judgment  entries  is  not  one  of  them.  A  ca  e  brought 
regularly  into  court  is  presumed  to  be  attended  at  regular 
terms  of  court  by  the  attorneys  having  it  in  charge;  and 
all  proceedings  of  the  court  in  reference  to  them,  in  the 
absence  of  fraud,  wnll  be  binding  on  the  parties,  whether 
present  or  not.  But  when  judgment  is  entered  they  may 
cease  their  attention.  The  further  proceedings  in  the 
case,  by  petition  to  vacate  or  modify  the  judgment,  or  on 
error  to  this  court,  must  be  on  proper  notice,  provided  by 
statute."^ 

§  104  b.  The  Effect  of  an  Order  Vacating  a  Judgment 
may  be  considered,  —  1,  With  reference  to  the  persons 
against  whom  the  order  is  sought  to  be  asserted;  and 
2.  With  reference  to  the  causes  on  account  of  which  the 
order  was  entered.  So  far  as  third  persons  are  concerned, 
it  seems  clear  that  their  acts,  done  by  authority  of  a 
judgment  which  was  not  void,  but  voidable  only,  may  be 
justified  under  the  judgment,  notwithstanding  its  subse- 
quent vacation,  except  when  they  have  been  given  notice 
of  the  motion,  and  the  court,  after  giving  them  an  oppor- 
tunity to  be  heard,  has  determined  that  it  should  be  set 
aside,  notwithstanding  their  interests  may  be  affected.^ 
With  the  parties  to  the  suit  this  rule  is  not  always  ap- 
plicable; and  whether  it  is  applicable  or  not  depends  on 
the  causes  producing  the  vacation.  The  judgment  may 
have  been  regularly  and  properly  entered,  and  its  subse- 
quent vacation  may  have  been  in  the  exercise  of  mercy 
toward  the  defendant.  In  such  case,  as  the  plaintiff  has 
been  guilty  of  no  neglect  or  misconduct,  he  may  no  doubt 

1  Nuckolls    V.    Irwin,    2   Neb.    60.         *  Schinidtt   v.    Niemeyer,    100   Mo. 
See,  however,  Laae  v.  Kingsberry,  11     207. 
Mo.  402. 


§  104  b  VACATING  JUDGMENTS.  150 

justif}^  all  his  acts  done  under  the  judgment  before  it 
was  set  aside.  But  where  the  order  of  vacation  is  made 
because  of  some  fault  or  misconduct  of  the  plaintiff  in 
procuring  the  original  judgment,  a  different  rule  may  be 
invoked.  "If  the  judgment  or  execution  has  been  set 
aside  for  irregularity,  the  party  cannot  justify  under  it,  for 
that  is  a  matter  in  the  privity  of  himself  and  his  attorney; 
and  if  the  sheriff  or  officer,  in  such  case,  join  in  the  same 
plea  with  the  party,  he  forfeits  the  benefit  of  his  defense. 
The  sheriff  or  officer,  however,  may  justify  under  an 
irregular  judgment  as  well  as  an  erroneous  one,  for  they 
are  not  privy  to  the  irregularity;  and  so  as  the  writ  be 
not  void,  it  is  a  good  justification,  however  irregular,  and 
the  purchaser  will  gain  a  title  under  the  sheriff."  ^  The 
case  of  a  judgment  set  aside  for  irregularity  differs  maCte- 
riall}'-  from  that  of  one  reversed  upon  appeal.  In  the  lat- 
ter case,  the  error  for  which  the  judgment  is  ultimately 
avoided  is  imputed  to  the  court,  and  the  parties  are  not 
left  without  protection  for  the  acts  which  they  have  done, 
based  upon  the  judgment,  and  upon  their  confidence  in 
the  correctness  of  the  decision  of  the  court.  But  a  judg- 
ment obtained  irregularly,  and  against  law  or  the  practice 
of  the  court,  is  tainted  with  vices  liable  to  result  in  its 
destruction,  and  for  which  the  party  practicing  the  irregu- 
larity is  alone  responsible.  When,  on  account  of  these 
vices,  the  judgment  is  vacated,  the  party  guilty  of  the 
irregularity  seems  to  be  as  completely  without  any  means 
of  justification  as  though  no  judgment  had  ever  been 
entered.'^ 

»  Tidd's  Practice,  1032.  Dec.  229;  Turner  v.  Felgate,  1  Lev.  95; 

2  Young  V.    Bircher,    31    Mo.    139;  Allen  v.  Huntington,  2  Aiken,  249";  1& 

Simpson    v.    Hornbeck,    3   Lans.    54;  Am.  Dec.  702;  Nelson  v.  Guflfey,  131 

Barker  v  Braham,  3  Wils.  3G8;  Cole-  Pa.  St.  273. 
man  v.  McAnulty,  16  Mo.  173;  57  Am. 


151  VACATING    JUDGMENTS    UNDER   STATUTES.         §  105 


CHAPTER  VII. 

OF  VACATING  JUDGMENTS  UNDER  STATUTES,  ON  ACCOUNT 
OF  MISTAKE,  INADVERTENCE,  SURPRISE,  OR  EXCUSABLE 
NEGLECT. 

§  105.  Summary  of  statutes. 

§  106.  Discretion  is  subject  to  review. 

§  107.  Party  recovering  may  move  to  vacate. 

§  108.  Affidavit  of  merits. 

§  109.  May  contradict  the  record,  but  not  the  affidavit  of  merits. 

§  110.  New  motion  may  be  regarded  as  continuation  of  an  old  one. 

§  111.  Lenience  of  the  New  York  courts. 

§  111  a.     Fraud  and  perjury. 

§  112.  Neglect  of  attorney  or  agent. 

§  113.  Mistake. 

§  114.  Excusable  neglect. 

§  115.  Inexcusable  neglect. 

§  115  a.     Surprise,  unavoidable  casualty,  and  misfortune. 

§  105.  Summary  of  Statutes.  —  The  authority  of  the 
courts  over  regular  judgments  has,  in  several  of  the  states, 
been  extended  beyond  the  term  in  certain  cases  specified 
by  statutes.  The  most  liberal  of  these  statutes  authorize 
"the  court,  at  its  discretion,  and  on  such  terms  as  may  be 
just,  at  any  time  within  one  year  after  notice  thereof,  to 
relieve  a  party  from  a  judgment  taken  against  him  through 
his  mistake,  inadvertence,  surprise,  or  excusable  neglect."^ 
In  other  states  this  provision  has  been  substantially 
copied,  except  that  the  period  in  which  an  aggrieved 
party  is  authorized  to  apply  for  relief  is  computed  from 
the  rendition  of  the  judgment  instead  of  "from  notice 
thereof."^  In  several  of  the  states  a  judgment  may  in  a 
specified  time,  though  the  term  has  passed,  be  relieved 
from  "for  unavoidable  casualty  or  misfortune  preventing 
the  party  from  defending  or  prosecuting,"  or  for  "fraud 

*  Sanborn  and  Berryman's  Wis.  Rev.  «  Cal.  Code  Civ.  Proc,  sec.  473;  Ind. 

Stats.,  sec.  2832;  N.  Y.  Code,  sec.  724;  Rev.   Stats.,  ed.  1881,  sec.  396;  N.  C. 

Idaho  Rev.  Stats.,  ed.  1887,  sec.  4229;  Code  Civ.  Proc,  274;  Nov.  Rev.  Stats., 

Pier ».  Millerd,  6:nVis.  33;  Vt.  Stats.,  ed.   1885,  sec.  3217;    Col.    Code   Civ. 

ed.  1880,  sec  1422.  Proc,  75;  Dakota  Code  Civ.  Proc,  143. 


§  105  VACATING    JUDGMENTS    UNDER    STATUTES.  152 

practiced  by  the  successful  party  in  obtaining  the  juflg- 
ment."^  The  statutes  of  these  states  further  provide  that 
the  proceeding  shall  be  by  petition  and  summons,  and 
that  the  judgment  shall  not  be  vacated  unless  it  be  first 
adjudged  that  there  is  a  valid  defense  or  a  valid  cause  of 
action.  Where  the  application  for  relief  is  sought  by 
motion,  and  the  statute  does  not  otherwise  provide,  notice 
of  the  motion  may  be  served  on  the  attorney  of  the  adverse 
party,  who,  notwithstanding  a  judgment  apparently  final 
has  been  entered,  must  be  regarded  as  authorized  to  repre- 
sent his  client  in  all  proceedings  begun  within  the  time 
limited  by  statute.^  In  Vermont,  the  county  court  may  set 
aside  a  judgment  of  a  justice  of  the  peace,  recovered 
against  a  party  who  was  prevented  from  appearing  by 
reason  of  " fraud,  accident,  or  mistake."^  In  Connecticut, 
relief  may  be  had  on  account  of  mistake,  accident,  or 
other  reasonable  cause.^  The  statutes  referred  to  in  this 
section  do  not  supersede  the  necessity  for  moving  for  a  new 
trial  in  cases  where  a  trial  has  been  had,  at  which  the  par- 
ties seeking  to  have  the  judgment  vacated  were  properly 
represented.^  If  they  were  represented  at  the  trial,  they 
can  obtain  relief  only  by  an  application  made  in  conform- 
ity with  the  rules  of  procedure  provided  by  law  in  reference 
to  new  trials.  But  if  they  were  not  at  the  trial,  or  were  not 
represented  there,  on  account  of  some  mistake  or  excusable 
neglect,  then  their  remedy  is  not  by  application  for  a  new 
trial,  but  by  an  application  addressed  to  the  discretion 
of  the  court,  and  made  under  the  statute  authorizing  relief 
to  be  granted  from  judgments  rendered  against  a  party 
through  "his  mistake,  in  advertence,  or  excusable  neglect."^ 
These  statutes  must  be  regarded  as  limiting  the  cases  in 
which  relief  can  be  granted  to  applications  made  within 
the  time,  and  for  some  of  the  causes  specified  in  the  stat- 

'  Ark.    Dig.    Stats.,    ed.   1884,    sec.  =*  Vt.  Rev.  Stats.,  ed.  1863,  p.  334, 

3909;  Ohio  Rev.  Stats.,  ed.  1890,  sec.  *  Coun.   Gen.  Stats.,  ed.  1888,  sec. 

5354;  Kan.  Comp.  Laws,  ed.  1885,  sec.  1126. 

4382;  McClain's  Iowa  Stats.,  ed.  1888,  *  Hobbs  v.  Comm'rs,   122  Ind.   180; 

sec.  4383.  McCullock  v.  Doak,  68  N.  C.  267. 

2  Merriam  v.  Gordon,  17  Neb.  325.  « McKiuley  v.  Tuttle,  34  Cal.  239. 


153  VACATING    JUDGMENTS    UNDER   STATUTES.         §  105 

ute/  provided  the  relief  is  sought  upou  some  of  the  grounds 
mentioned  in  such  statutes.  If,  however,  the  motion  is  to 
vacate  a  judgment  because  irregularly  entered,  it  may  be 
granted,  although  not  made  within  the  time  named  in 
these  statutes.'^  Neither  do  these  statutes  preclude  a 
party,  in  a  proper  case,  from  obtaining  relief  in  equity, 
after  the  time  for  applying  for  relief  under  these  statutes 
"has  elapsed,  provided  proper  reasons  are  shown  for  not 
making  such  application.'"  Nor  do  these  statutes  apply 
to  motions  made  during  the  term  at  which  the  judgment 
was  entered.*  A  judgment  will  not  be  vacated  on  motion 
of  a  stranger  to  the  cause,  to  enable  him  to  be  made  a 
party  to  the  action.^  Error  of  law  is  no  ground  for  relief 
under  these  statutes.^  While  these  statutes  designate  a 
time  within  which  application  must  be  made  for  relief, 
the  proceedings  thereunder  are  equitable  in  character, 
and  the  delay  of  the  moving  party  after  he  had  notice, 
actual  or  implied,  of  the  judgment  against  him  may  jus- 
tify the  court  in  denying  relief  on  the  ground  of  his 
laches,  though  his  motion  was  made  or  his  petition  filed 
within  the  time  named  in  the  statute.^  But  in  Iowa,  the 
maxim  is  proclaimed  that  "  laches  will  not  be  imputed  in 
the  exercise  of  a  legal  right  within  the  time  prescribed 
by  statute";^  and  hence  it  was  determined  that  whosoever 
brings  his  action  or  motion  within  the  year  cannot  be 
barred  of  his  rights  on  the  ground  of  laches  in  not  sooner 
seeking  relief.^  In  many  instances,  where  service  of 
process  is  constructive,  and  the  defendant  had  no  actual 
notice  thereof  in  time  to  defend,  he  may  doubtless  obtain 
relief  under  the  statutes  already  referred  to.    In  several  of 

1  Gerrish  v.  Johnson,  5  Minn.  23.  *  Spaflford  v.  Janesville,  15  Wis.  474; 

*  Cowles  V.  Haynes,  69  N.  C.  406;  Landou  v.  Burke,  33  Wis.  453. 

Ladd  V.  Stevenson,  1 12  N.  Y.  325.  '  Jonet   v.    Mortimer,  29   La.   Ann. 

3  Coates  u.  Chillicothe  Bank,  23  Ohio  206;  Williams  v.  Williams,  70   N.  C. 

St.  415;  Darst  v.  Phillips,  41  Ohio  St.  665;    Bradford    v.    TJoit,  77   N.    C.   72; 

514;  Lumpkin  v.  Snook.  63  Iowa,  515;  Altinau  v.  Gabriel,  28  Minn.  132;   Bi- 

District  Township  v.  White,  42  Iowa,  rech  v.  Frantz,  77  Ind.  199. 

608;  Bond  v.  Epley,  48  Iowa,  600.  ^  Independent     School    District    w, 

*McCullock    V.    Doak,    68    N.    C.  Schreiner,  46  Iowa,  172. 

2G7.  ^  Indei)en(leiit     School     District    t;. 

^  Smith  V.  Newbern,  73  N.  C.  303.  Schreiner,  46  Iowa,  172. 


§  105  VACATING   JUDGMENTS    UNDER    STATUTES.  154 

tlie  states,  however,  special  provision  has  been  made  by- 
statute  for  this  cLass  of  cases,  and  where  the  service  was 
by  publication  only,  the  defendant  is  allowed  a  specified 
time,  either  after  the  date  of  the  judgment  or  after  notice 
thereof,  within  which  to  appear  and  make  an  application 
to  have  the  judgment  opened  and  to  be  let  in  to  defend. 
In  some  of  these  statutes  the  time  given  is  five  years, 
while  in  others  it  is  a  much  shorter  period.  Notice  of 
the  defendant's  application  must  be  given  to  the  adverse 
party,  and  the  defendant  must  show  that  he  had  no  actual 
notice  of  the  pendency  of  the  action  in  time  to  appear 
and  make  his  defense.  On  complying  with  the  conditions 
oj^the  statute,  the  moving  party  secures  an  absolute  right 
to  have  the  judgment  opened,  which  the  court  has  no 
discretion  to  deny;^  but  if  he  omits  to  do  any  act  required 
of  him,  his  motion  will  be  denied.^  Under  some  of  the 
statutes,  the  rights  of  bona  fide  purchasers  cannot  be  preju- 
diced by  ^proceedings  to  open  the  judgment  and  to  be  let 
in  to  defend.'  Under  the  statute  of  Iowa  declaring  that 
"when  a  judgment  has  been  rendered  against  a  defendant 
or  defendants  served  by  publication  only,  and  who  did 
not  appear,  such  defendants,  or  any  one  or  more  of  them, 
or  any  person  legally  representing  him  or  them,  may,  at 
any  time  within  two  years  after  the  rendition  of  the 
judgment,  appear  in  court  and  move  to  have  the  action 
retried,"  it  was  held  that  one  who  claimed  to  have  suc- 
ceeded to  the  interest  of  the  defendant  during  the  pen- 
dency of  the  action  was  not  entitled  to  have  the  judgment 
opened.*  There  are  also  statutes  in  force  in  some  of  the 
states  authorizing  the  setting  aside,  on  application  made 
within  a  time  designated,  of  a  judgment  rendered  against 
a  defendant  in  his  absence,  upon  his  complying  with  the 

1  Savage  v.  Aiken,  14  Neb.  315;  Al-  278;  Kinney  v.  O'Bannon,  6  Bush,  692; 

bright   V.  Warkentin,    31    Kan.    442;  McLean  v.  McLean,  84  N.  C.  366. 

Ohio  Rev.  Stats.,  ed.  1890,   sec.  5355;  ^  Satterlee  v.  G-ruhb,  38  Kan.  234. 

McClain's   Iowa  Stats.,  ed.  1888,  sec.  '  Ohio   Rev.    Stats.,    ed.   1890,   sec. 

4087;  Idaho  Rev.  Stats.,  ed.  1887,  sec.  5356. 

4229;    Frankoviz  v.  Smith,  35   Miun.  *  Parsons  v,  Johnson,  66  Iowa,  455. 


155  VACATING    JUDGMENTS    UNDER    STATUTES.         §  106 

conditions  in  such  statutes  enumerated.^  The  courts  are 
unable  to  agree  upon  what  constitutes  absence  Avithin  the 
meaning  of  these  statutes.  On  the  one  side  it  is  insisted 
that  if  a  defendant  is  not  physically  present  at  the  trial, 
he  is  necessarily  absent  and  entitled  to  the  benefit  of 
the  statute;^  while  on  the  other  side  it  is  held  that  when 
a  defendant  has  been  personally  served  with  process,  or 
has  entered  his  appearance  in  the  action,  he  is  brought 
into  court,  and  cannot  thereafter  be  regarded  as  absent 
therefrom  so  as  to  entitle  himself  to  be  relieved  from  the 
judgment.^ 

§  106.  Discretion  is  Subject  to  Review.  —  Under  tbe 
uniform  construction  given  to  these  statutes,  the  signifi- 
cation of  the  words  "  at  its  discretion  "  has  been  materially 
limited.  The  "  discretion  "  here  referred  to  is  not  "the 
power  of  acting  without  other  control  than  one's  own 
judgment."  "  It  is  not  a  mental  discretion,  to  be  exercised 
ex  gratia,  but  is  a  legal  discretion,  to  be  exercised  in  con- 
formity to  law.*  If  the  power  of  the  court  were  discre- 
tionary in  the  ordinary  sense  of  that  term,  the  practice 
would  necessarily  be  as  varied  as  are  the  different  tem- 
peraments of  judges;  and  even  in  proceedings  before 
the  same  judge,  would  as  probably  be  shaped  by  the  per- 
sonal pleasures  or  annoyances  of  the  several  occasions  in 
which  he  happened  to  act  as  by  those  unvarying  rules 
which,  whenever  applied  to  identical  circumstances,  pro- 
duce identical  results.  But  the  power  of  the  court  is 
nevertheless  to  be  liberally  exercised.^  These  statutes  are 
remedial  in  their  character,  intended  to  furnish  a  simple, 
speedy,  and  efficient  means  of  relief  in  a  most  worthy 
class  of  cases.    An  order  of  the  court  vacating  a  judgment 

»  Strine  v.  Kignsbaker,  12  Neb.  52;  122;  James   v.  Townsend,  104   Mass. 

Covart  V.  Haskius,  39  Kan.  571;  Riloy  367;   Smith  v   Brown    Ub  Mass   41b. 

V.  Hale,  146  Mass.  465.  *  Bailey  v.  Taaffo^  29  Cal.  422;  John- 

2  Covart  V.  Haskins,  39  Kan.  571.  son  v.  Eldred,  13  Wis.  482;  Powell  v. 

» Riley    V.    Hale,    146    Mass.    465;  Weith,  68  N.  C.  342. 

Strine    v.    Kaufman,     12     Ncl).    423;  '  Roland  v.   Kreyenhagen     18  Cal. 

Matthewsou    v.    Moultou,  135    Mass.  455;  Mason  v.  McNamara,  57  HI.  274. 


§  106  VACATING    JUDGMENTS    UNDER    STATUTES.  156 

entered  by  default  will  not  be  disturbed  by  the  appellate 
court,  except  in  case  "of  gross  abuse  of  the  discretion  of 
the  court."  ^  Both  orders  granting  and  orders  denying 
applications  under  these  statutes  are  subject  to  review 
upon  appeal;^  but  onl}^  in  extreme  cases  is  the  action  of 
a  trial  court  likely  to  be  reversed.  If  the  moving  party 
makes  a  clear  and  unquestionable  showing  that  he  has  a 
good  defense  or  cause  of  action  on  the  merits,  of  the 
benefit  of  which  he  has  been  deprived  without  fault  on 
his  part,  the  court  has  no  discretion  to  deny  him  relief, 
and  should  it  do  so,  its  action  will  be  set  aside,  and  proper 
relief  ordered  by  the  appellate  court.*  On  the  other  hand, 
if  the  facts  are  disputed,  the  finding  of  the  lower  court 
will  be  treated  as  conclusive  on  appeal;*  and  even  when 
the  facts  are  not  questioned,  its  action  will  not  be  re- 
versed, except  it  clearly  appears  that  its  discretion  has 
been  abused,^  or  arbitrarily  exercised.^  If  it  appears 
proper  to  the  trial  court  to  grant  relief,  it  may  also  exer- 
cise a  sound  discretion  as  to  terms  and  conditions  upon 
which  it  will  be  granted.  It  may  omit  all  conditions,^  or 
may  impose  any  condition  whatever  not  savoring  of  a 
capricious  or  arbitrary  use  of  its  powers.  Thus  in  a 
proper  case,  the  defendant,  as  a  condition  of  having  judg- 
ment against  him  opened  or  set  aside,  may  be  required  to 
confine  his  evidence  to  a  particular,  ground  of  defense,^  or 
to  consent  to  the  appointment  of  a  receiver,®  or  to  stip- 
ulate not  to  bring  an  action  against  parties  who  have 
acted  under  the  judgment,^"  or  to  pay  all  costs  accrued  up 
to  the  date  of  its  vacation,"  or  to  deposit  money  in  court 

'  Howe  I).  Independence  Co.,  29  Cal.  Waggoner,    82    N.    C.    173;    Parsons 

72;  Merritt  v.  Putnam,  7  Minn.  493.  Bank    v.    Wentworth,    28   Kan,    183; 

^  Haight  V.  Green,  19  Cal.  113;  Mul-  Brophy  v.  J.  M.  Brunswick  and  Balke 

holland  v.  Heyneman,  19  Cal.  605;  29  Co.,  2  Wyo.  86. 
Cal.  422;  Hill  v.  Crump,  24  Ind.  291.         «  Pry  v.  Hannibal  &  St.  J.  R.  R.  Co., 

*  Craig  V.  Smith,  65  Mo.  536;  Cleve-  73  Mo.  123. 

land  V.  Hopkins,  55  Wis.  387;  Cleve-         '  Ryan  v.  Mooney,  49  Cal.  33. 
land  V.  Burnham,   55  Wis.  598;  Hag-         *  Houston  Township  and  Fire  Ins. 

gerty  v.  Walker,  21  Neb.  596.  Co.  v.  Beale,  110  Pa.  St.  321. 

*  Weil  V.  Woodward,  104  N.  C.  94;         ^  Exley  v.  Berryhill.  36  Minn.  117. 
Wernet's  Appeal,  91  Pa.  St.  319.  "  Young  v.  Bircher,  31  Mo.  136;  77 

^  Smith  V.  Black,  51  Md.  247;  Kerch-     Am.  Dec.  638. 
ner  v.  Baker,  82  N.  C.    169;  Hiatt  v.         "  Howe  v.  Coldren,  4  Nev.  171. 


157      VACATING   JUDGMENTS  UNDER  STATUTES.      §§  107,  108 

to  pay  so  mucli  of  the  claims  sued  upon  as  he  admits  to 
be  due/  The  imposition  of  this  last  condition  seems  to 
us  to  be,  in  ordinary  circumstances,  an  abuse  of  discre- 
tion, because  it  may  require  the  defendant,  in  order  ta 
escape  from  an  unjust  demand,  to  pay  another  but  just 
demand  which  he  is  without  pecuniary  liability  to  dis- 
charge. In  two  instances,  the  imposing  of  a  condition 
that  defendant  should  give  a  bond  with  sureties  for  the 
payment  of  such  judgment  as  might  ultimately  be  recov- 
ered against  him  was, decided  to  be  an  abuse  of  discretion.^ 

§  107.     Party  Recovering  may  Move  to  Vacate.  —  The 

literal  meaning  of  the  words  employed  in  these  statutes 
has  been  further  modified  by  judicial  construction.  The 
statute  says  the  court  may  relieve  a  party  from  a  judg- 
ment "  taken  against  him."  But  a  party  in  whose  favor 
a  judgment  has  been  rendered  has  been  decided  to  be 
within  the  meaning,  but  not  within  the  words,  of  the  stat- 
ute, on  the  ground  that  the  law,  being  of  a  remedial  char- 
acter, must  be  liberally  construed.^  Such  a  party,  however, 
though  nominally  prevailing,  may  lose  part  of  his  de- 
mand. To  that  extent  he  would  be  entitled  to  an  appeal; 
and  it  is  no  far-fetched  construction  to  say  that  he  is, 
therefore,  within  the  words  as  well  as  within  the  meaning 
of  the  statute. 

§  108.  Affidavit  of  Merits.  —  These  statutes  are  to  be 
employed  only  in  furtherance  of  justice,  and  never  for  th© 
purpose  of  enabling  a  party  to  raise  some  technical  objec- 
tion. Even  where  the  statute  does  not  so  expressly  direct, 
no  judgment  will  be  opened  unless  it  is  shown  to  be  un- 
just. "Every  consideration  of  expediency  and  justice  is 
opposed  to  the  opening  up  cases  in  which  judgment  by 
default  has  been  entered,  unless  it  be  made  to  appear 
prima  facie  that  the  judgment  as  it  stands  is  unjust."*     In 

'  Magoon  v.  Callahan,  39  Wis.   141.  »  Montgomery  v.  Ellis,  6  How.  Pr. 

» Brown  v.   Brown,   37    Minn.    128;  32G. 

Union    Bank   v.    Benjamin,    61    Wis.  *  Parrottu  Den,  34  Cal.  79;  Thatcher 

512,  V.  Haun,  12  Iowa,  303;  Wooster  Coal 


§  108  VACATING   JUDGMENTS    UNDER    STATUTES.  158 

all  cases  an  affidavit  of  merits  must  be  made  and  filed, 
except  where  it  appears  that  the  court  had  never  acquired 
jurisdiction  over  the  moving  party,  and  that  its  judgment 
against  him  is  void;^  but  in  this  class  of  cases  he  is  en- 
titled to  relief  independently  of  these  statutes.''  Where 
the  affidavit  to  open  a  default  stated  that,  after  a  careful 
examination,  the  attorneys  are  of  the  opinion  that  they 
have  a  good  legal  defense  to  the  complaint,  the  judgment 
was  not  set  aside,  because  the  matter  shown  appeared  to 
be  of  a  technical  character;'  and  for  aught  that  appeared 
to  the  contrary,  the  judgment  might  be  perfectly  consist- 
ent with  fair  dealing.  A  verified  answer  has  been  held 
not  to  obviate  the  necessity  for  an  affidavit  of  merits. 
The  reasoning  upon  which  this  view  is  based  is,  that 
while  an  answer  might  he  true,  and  the  matters  set  forth 
in  it  might,  upon  their  face,  seem  to  form  a  sufficient 
defense  to  the  complaint,  yet  they  might  be  affected  by 
other  matters  in  avoidance,  well  known  to  the  defendant, 
but  which  he  was  under  no  obligation  to  state  in  his 
answer;  that  in  order  to  authorize  the  interposition  of  the 
court,  something  more  ought  to  be  required  than  an  ex- 
hibition of  facts  which,  if  neither  explained  nor  avoided, 
would  present  an  obstacle  to  plaintiff's  recovery;  that  to 
bring  a  case  completely  within  the  statute,  it  must  appear 
prima  facie  that  the  defendant,  in  addition  to  having  an 
answer  to  the  complaint,  has  a  defense  which  is  sufficient 
and  meritorious  when  viewed  in  all  the  light  which  can 
be  thrown  upon  it  by  all  the  facts  involved  in  the  action.* 
We  see,  however,  no  sufficient-  reason  for  denying  to  a 
verified  answer  the  effect  of  an  affidavit  of  merits,  provided 
its  contents  are  such  as  must  be  regarded  as  sufficient 
when  found  in  an  affidavit  of  merits."     In  some  of  the 

Co.  V.  Nelson,  4  U.  C.  P.  343;  Mulhol-  ^  ^^f^^  ggc.  98. 

Ian  V.  Scoggin,  8  Neb.  202;  Anderson  '  People  v.  Rains,  23  Cal.  127. 

V.  Beebe,  22  Kan.  768:  Niagara  Ins.  *  Jones  v.  Russell,  3  How.  Pr.  324; 

Co.  V.  Rodecker,  47  Iowa,  162;  Bank  Mowry  v.  Hill,  11  Wis.  146.     But  the 

of  Statesville  v.   Foot,   77  N.   C.    131;  rule  has,  in  Wisconsin,  been  changed 

Mauney   v.    Gedney,    88   N.    C.    200;  by  statute:  See  Town  of  Omrou.  Ward, 

l5raper  v.  Bishop,  4  R.  I.  489.  19  Wis.  232. 

^  Dobbins  v.    McNamara,    113   Ind.  ^  Huebner  v.  Farmers'  Ins.  Co.,  71 

64.  Iowa,  30. 


159  VACATING   JUDGMENTS    UNDEK   STATUTES.         §  108 

states  a  motiou  to  set  aside  a  judgment  and  to  be  let  in  to 
defend  must  be  accompanied  by  a  verified  answer,^  As 
to  tlie  contents  of  the  affidavit  of  merits,  the  practice  differs 
essentially  in  different  states.  The  more  reasonable,  in 
our  judgment,  is  the  one  which  requires  the  moving  party 
to  disclose  his  cause  of  action  or  ground  of  defense  with 
such  particularity  as  enables  the  court  to  determine 
whether  or  not  it  is  good  and  sufficient  on  the  merits.^ 
The  other  and  less  defensible  practice  substitutes  the 
moving  party  and  his  counsel  for  the  court  and  accepts 
their  judgment  as  conclusive,^  and  requires  his  affidavit 
to  show  that  he  "  has  fully  and  fairly  stated  the  case  to 
his  counsel,"  and  that  after  such  statement  he  is  advised 
by  his  counsel  and  believes  that  "  he  has  a  good,  full,  and 
perfect  defense  to  the  action  upon  the  merits."  An  affi- 
davit showing  that  defendant  had  stated  "  his  defense"  is 
insufficient,  because  it  does  not  show  that  he  has  disclosed 
all  the  material  facts  affecting  the  action,  nor  what  mat- 
ters in  avoidance  of  his  defense  exist.  It  should  show 
that  he  had  stated  "  the  case."  *  An  affidavit  that  defend- 
ant had  fully  stated  the  facts  of  the  case  to  his  counsel 
has  been  held  insufficient;  it  should  declare  that  he  has 
fully  and  fairly  stated  such  facts.®  It  is  not  indispensable 
that  the  affidavit  of  merits  be  made  by  the  defendant  per- 
sonally. His  attorney  may  make  it.^  Where  the  affidavit 
is  made  by  some  person  other  than,  the  defendant,  it 
should  appear  that  such  person  is  acquainted  with  the 
facts  he  attempts  to  make  known  to  the  court.'     An  affi- 

1  Spencer  v.  Thistle,   13  Neb.  227;         MVoodvvard  ».  Backus,  20  Cal.  137; 

Cleveland  v.  Burnham,  55  Wis.  598.  Burnham  v.  Smith,  11  Wis.  258;  Bern- 

■■^  Lamb  v.  Nelson,  34  Mo.  501;  Fos-  stein  v.  Brown,  23  Neb.  64. 
ter  u.  Martin,  20  Tex.  118;  Roberts?;.  *  Burnham  v.   Smith,    11  Wis.    258; 

Corby,  86  III.  182;  Castlio  v.  Bishop,  Nickerson  v.  California  R.  R.  Co.,  61 

51  Mo.  162;  Railway  Co.  v.  Gates,  23  Cal.  268. 

Ind.  238;  Goldsberry  v.  Carter,  28  Ind.         *  Morgan    v.    McDonald,    70     Cal. 

69;  Frost  v.  Dodge,  15  Ind.  139;  Slagle  32. 

V.  Bodner,  75  Ind.   380;  Contreras  v.         *'  Francoviz  v.  Smith,  35  Minn.  278; 

Haynes,    61    Tex.    103;    Crossman   v.  Jean  v.  Hennessy,  74  Iowa,  348. 
Wohlleben,  90   111.  537;   Williams  v.         '  Hitchcock  v.  Hcrzur,  90  111.  543; 

Kessler,  82  Ind.  183;  Jaeger  v.  Evans,  Baker     v.    Knickerbocker,    25    Kan. 

46  Iowa,   188;  Palmer  v.  Rodgers,  70  28S;  Woodworth  v.  Coleman,  57  Vt. 

Iowa,  381.  368. 


§    109  VACATING    JUDGMENTS    UNDER    STATUTES.  160 

davit  by  the  attorney  that  from  an  examination  of  the 
defendant's  case,  so  far  as  he  has  been  able  to  examine  it, 
he  verily  believes  it  is  better  than  plaintiff's,  is  therefore 
insufficient.     It  does  not  show  that  the  attorney  knows 
what  the  defense  is;  nor  whether  the  examination  was 
meager  or  thorough.     Neither  does  he  state  that  the  de- 
fendant had  fully  and  fairly  stated  the  case,  and  "  what, 
in   view  of  such   statement,  is  his  professional  opinion 
touching  the  defense."     But  this  omission  in  an  affidavit 
made  by  an  attorney  is  immaterial;  for  the  statements  of 
the   defendant,  incorporated   into   an   affidavit  made   by 
another  person  is  nothing  "  but  hearsay,  and  therefore 
entitled  to  no  weight."  *     Under  these  statutes,  the  courts 
discriminate  against  defenses  of  a  technical  character,  re- 
garding them  as  not  "  on  the  merits."     There  is  no  very 
safe  and  unquestionable  test  by  which  defenses  good  and 
sufficient  under  the  laws  of  the  state  may  be  recognized  as 
meritorious  or  non-meritorious;  and  perhaps  the  courts 
would  do  best  to  treat  with  equal  forbearance  all  defenses 
which  are  sufficient  in  law,  unless  they  are  assailed  upon 
some  clear  ground  of  equitable  jurisdiction.     Therefore 
the  defense  of  the  statute  of  limitations  has  been  treated 
as   "  on   the  merits,"  so  as  to  entitle  a  judgment  to  be 
opened  to  permit  it  to  be  interposed;'^  while  on  the  other 
hand  the  defense  of  usury  ^  and  of  the  statute  of  limita- 
tions* have  been  held  to   be  defenses  which  the  court 
might,  in  the  exercise  of  its  discretion,  refuse  to  open  a 
judgment  to  entertain. 

§  109.  May  Contradict  the  Record,  but  not  the  AflB- 
davit  of  Merits.  —  In  applications  under  these  statutes  the 
parties  are  at  liberty  to  contradict  tlie  record,  and  to  es- 
tablish, by  any  competent  evidence,  the  truth  of  the  facts 
upon  which  their  claim  to  relief  is  based.*     But  the  hear- 

1  Bailey  v.  Taaffe,  29  Cal.  422.  *  Sheets   v.  Baldwin,   12  Ohio,   120; 

^  Ellinger's  Appeal,  114  Pa.  St.  505;  Newsom's  Adm'r  v.  Ran,  18  Ohio,  240. 

Mitchell  V.  Campbell,  14  Or.  454.  *  McKinley  v.  Tuttle,  34  Cal.  235; 

^  Hazelrigg   v.   Wainright,   17   Ind.  Mosseaux    v.    Brigham,    19   Vt.    457; 

215.  Gay  v.  Graat,  101  N.  G.  206. 


161       VACATING   JUDGMENTS    UNDER  STATUTES.      §§  110,  111 

ing  of  evidence  is  confined  to  the  question,  whether  the 
judgment  has  been  taken  through  the  inadvertence,  mis- 
take, surprise,  or  excusable  neglect  of  the  defendant.  The 
applicant  is  not  required  to  make  more  than  such  a  prima 
facie  showing  of  merits  as  arises  from  his  own  affidavits. 
The  code  did  not  intend  that  there  should  be  two  trials  of 
the  merits.  Therefore  the  defendant  is  not  required  to 
prove  his  defense,  as  he  would  at  the  trial,  nor  can  his 
affidavits  of  merits  be  controverted.^ 

§  110.  New  Motion  Treated  as  Amendment  of  an  Old 
One.  — In  Wisconsin,  an  application  granted  in  the  lower 
court  was  dismissed  in  the  supreme  court  for  want  of  an 
affidavit  of  merits,  without  prejudice  to  a  new  motion. 
But  during  the  time  involved  in  determining  the  first 
motion,  the  period  in  which  the  statute  authorized  an 
application  for  relief  expired.  A  new  motion  was,  how- 
ever, at  once  made,  and  was  opposed  on  the  ground  that 
it  came  too  late.  Whereupon  it  was  adjudged  to  be  sub- 
stantially a  continuation  of  the  old  motion,  in  the  nature 
of  an  amendment  of  the  papers  on  which  that  motion  was 
founded;  and  being  otherwise  meritorious  and  in  confor- 
mity to  the  practice,  it  was  granted.^ 

§  111.  Lenience  of  New  York  Courts.  —  These  statutes 
surely  were  not  designed  to  confer  upon  the  same  court 
both  an  original  and  an  appellate  jurisdiction  over  the 
same  cause; ^  nor  yet  to  allow  a  party,  once  having  an 
ample  opportunity  to  present  his  defense  or  cause  of  ac- 
tion, to  re-present  it  at  some  future  time,  with  such  other 
features  as  a  more  mature  reflection  happened  to  suggest. 
Yet  there  are  cases  scarcely  reconcilable  with  any  other 
theory.    They  have  chiefly,  if  not  exclusively,  been  deter- 

'  Pratt  V.  Keils,  28  Ala.  390;  Fran-  Ind.   81;   Brestor  v.   Galvin,  62  Ind. 

cis  V.  Cox,  33  Cal.  323;  Hill  v.  Crump,  352;  Joerns  v.  Le  Nicca,  75  Iowa,  705. 

24  Ind.  271;  Gracier  u.  Weir,  45  Cal.  ^Butler   v.    Mitchell,    17    Wis.    52. 

53;    Bank   v.    Harrison,    4    U.   C.    P.  See  also  Howell  v.   Harrell,   71  N.  C. 

331;  Wooster  Coal  Co.  v.   Nelson,   4  161. 

U.    C.   P.   343;    Buck   v.  Havens,    40  '  Greer  v.   Mayor  of  New  York,  4 

Ind.    221;    Beatty  v.    O'Connor,    106  Rob.  (N.  Y.)  675. 

JUDG.  I.  — 11 


§111  VACATING    JUDGMENTS    UNDER    STATUTES.  162 

mined  in  a  state  where  judgments  seem  to  be  regarded, 
not  as  inviolate  and  enduring  testimonials,  but  as  tempo- 
rary structures,  to  be  torn  down,  remodeled,  or  rebuilt 
whenever  the  builders  feel  competent  to  improve  the  ori- 
ginal workmanship  or  design.  Thus  in  one  case,  a  judg- 
ment in  all  respects  regular,  and  resulting  from  a  trial  in 
which  there  was  no  pretense  of  any  want  of  opportunity 
to  defend,  and  at  which  both  parties  were  represented  by 
counsel,  was  set  aside  because  of  an  error  of  the  court  in 
estimating  the  value  of  a  life  estate.  The  defendant  w^as 
a  municipal  corporation,  whose  counsel  was  an  elective 
oflBcer  not  under  its  control.  This  counsel  was  obliged  to 
attend  to  a  vast  amount  of  business,  and  could  not,  there- 
fore, devote  much  attention  to  any  particular  case.  These 
w^ere  the  reasons  upon  which  the  court  justified  its  inter- 
position. In  another  case,  the  action  was  for  an  amount 
due  under  a  contract  for  work  upon  the  streets.  Judg- 
ment was  obtained,  the  defendant  being  properly  in  court, 
and  contesting  plaintiff's  right  to  recover  part  of  his  de- 
mand. The  defendant  was  afterward  relieved  from  a 
portion  of  the  judgment,  on  the  ground  that  a  misappre- 
hension existed  betw^een  plaintiff  and  defendant,  in  mak- 
ing the  original  contract,  by  reason  of  which  neither  had 
assented  to  the  contract  as  understood  by  the  other.^  The 
mistake  of  counsel  in  conducting  the  case,  arising  out  of 
his  ignorance  of  the  law,  was  the  only  ground  upon  which 
relief  from  another  judgment  was  granted.  The  prin- 
ciples which,  in  the  opinion  of  the  court,  should  be  ap- 
plied to  the  case  were  indistiuctly  defined  as  follows: 
"  There  may  be  a  case  so  novel  and  peculiar  in  its  nature, 
in  which  it  is  so  palpable  that  actual  injustice  may  and 
probably  has  been  done,  and  wdiere  there  are  no  other 
means  of  relief,  that  the  court  will  feel  bound  to  relieve 
the  party  from  the  consequence  of  the  inadvertence  and 
mistake  of  his  counsel,  although  it  arose  from  a  misap- 
prehension of  the  law  or  rules  of  practice,  if  that  can  be 

'  Pettigrew  v.  Mayor  of  New  York,  17  How.  Pr.  492. 


163  VACATING    JUDGMENTS    UNDER    STATUTES.       §  111  a 

done  without  prejudice  to  the  rights  of  the  parties;  by 
which  is  meant,  without  any  loss  to  them,  other  than 
such  as  may  necessarily  result  from  establishing  what 
may  be  shown  to  be  the  rights  of  the  party  applying."  ^ 

§  111  a.     Fraud  Practiced  in  Obtaining  a  Judgment  is 

sometimes  specified  in  the  statutes  as  one  of  the  grounds 
which  entitle  an  innocent  and  injured  litigant  to  have  it 
vacated.^  Even  if  this  ground  were  not  specifically  enu- 
merated in  the  statute,  it  would  generally  be  available  to 
the  injured  party  on  the  ground  that  it  had  occasioned 
the  rendition  of  a  judgment  against  him  by  surprise,  or 
mistake,  or  under  circumstances  which,  as  to  him,  might 
well  be  deemed  excusable  neglect.  A  very  serious  ques- 
tion arises,  whether  the  fraud  for  which  a  judgment  may 
be  vacated  under  these  statutes  includes,  in  any  case,  the 
willful  perjury  of  the  successful  litigant  at  the  trial.  In 
a  comparatively  recent  case  which  was  heard  in  the 
supreme  court  of  Kansas  on  two  or  three  separate  appeals, 
that  tribunal  concluded  that  a  judgment  wholly  unjust, 
and  procured  by  the  willful  perjury  of  the  plaintiff*,  ought 
to  be  vacated,  although  the  defendants  did  not  show 
"unavoidable  casualty  or  misfortune,  preventing  them 
from  defending  the  original  action."^  "A  party,"  said 
the  court,  "is  never  required  to  exercise  more  than  rea- 
sonable and  ordinary  diligence  in  preventing  a  fraud 
from  being  perpetrated  upon  him,  and  fraud  vitiates 
everything  it  touches.  Of  course,  a  defendant  failing  to 
defend  cannot  have  the  judgment  vacated  on  account  of 
any  innocent  mistake  or  want  of  recollection  on  the  part 
of  the  plaintiff  or  other  witness,  nor  even  on  account  of 
the  perjury  of  the  other  witnesses,  provided  the  plaintiff" 
himself  is  wholly  guiltless.  Nor  can  he  have  the  judg- 
ment vacated  on  account  of  any  mistake  or  error  on  the 

'  Levy  ?'.  Joyce,  1  Bosw.  622.  7  Kan.    254;   Baldwin   v.    Sheets,    39 

^  Indepen<lcnt     School     District    v.  Ohio  St.  024.    See  Heatheoote  v.  Has- 

Schreiner,  46  Iowa,  172.  kins,  74  Iowa,  566,  670. 
*  Laithe  v.  McDonald,  12  Kan.  340; 


§    112  VACATING    JUDGMENTS    UNDER    STATUTES.  164 

part  of  the  court  or  jury,  unless  the  record  affirmatively 
shows  such  mistake  or  error.  All  such  mistakes  or  errors 
each  party  is  bound  to  anticipate,  and  to  prepare  for  by 
extraordinary  diligence.  But  no  party  is  bound  to  antici- 
pate or  to  suppose  that  the  other  party  will  commit  will- 
ful and  corrupt  perjury;  and  no  party  is  bound  to  exercise 
extraordinary  diligence  in  preparing  to  meet  such  per- 
jury. In  this  case  we  think  the  defendants  exercised 
reasonable  ,diligence."  The  diligence  which  was  in  this 
case  adjudged  to  be  reasonable  and  sufficient  consisted  of 
filing  an  answer  so  that  judgment  could  not  be  obtained 
by  default,  nor  otherwise  than  through  false  testimony; 
of  taking  ineffectual  steps  to  procure  witnesses  in  time  for 
the  trial;  and  on  ascertaining  that  the  witnesses  could 
not  be  obtained  in  time,  of  writing  a  letter  to  counsel  to 
obtain  a  continuance,  the  letter  being  written  in  time,  but 
not  reaching  its  destination,  owing  to  delay  in  the  United 
States  mails.  We  are  not  sure  that  these  decisions  are 
not  sustainable  under  the  peculiar  facts  of  the  case;  but, 
manifestly,  great  caution  must  always  be  exercised  before 
vacating  or  granting  relief  from  a  judgment  when  the 
parties  are  regularly  in  court,  the  cause  regularly  brought 
on  for  trial,  and  the  alleged  grounds  for  relief  involve  a 
re-examination  of  the  issues  already  tried. ^ 

§  112.  Neglect  of  Attorney.  —  The  neglect  of  an  attor- 
ney or  agent  is  uniformly  treated  as  the  neglect  of  the 
client  or  principal,^  except  in  New  York  and  North  Caro- 
lina.^ A  default  will  not  be  opened  because  the  attorney 
had   prepared  a  demurrer,  but   had  failed  to   file   it  by 

'  Flower  v.  Lloyd,  8  Cent.  L.  J.  415;  eiater  a  plea,  when  employed  to  do  so, 

6  L.  R.  Ch.  Div.  297;  37  L.  T.,  N.  S.,  was  held  to  entitle  his  client  to  relief 

419;  post,  sees.  289,  435,  503.  on    the    ground  of   surprise:  Griel   v. 

2  Austin    V.    Nelson,    11    Mo.    192;  Vernon,  135  N.    C.   70;  but  when  the 

Kerby  v.  Chadwell,   10  Mo.  392;  Mer-  only  showing  was  that  the  defendant 

ritt  V.  Putnam,  7  Minn.  493;  Jones  v.  had  written  to  an  attorney  to  appear 

Leech,  46  Iowa,   186;  Gherke  v.  Jod,  for  him,  who  did  not  do  so,  relief  was 

59  Mo.  522;  Matthis  v.  Town  of  Cam-  denied:  Burke   v.   Stokely,    65   N.   C. 

eron,  62  Mo.  504;  Niagara  Ins.  Co.  v.  569. 

Rodecker,    47   Iowa,   162.     In   North  ^  Gwathney   v.   Savage,    101   N.   C. 

Carolina,  the  failure  of  an  attorney  to  103. 


165  VACATING    JUDGMENTS    UNDER    STATUTES.  §   113 

reason  of  his  miscalculating  the  time  when  it  was  due;* 
neither  will  relief  be  granted  because  the  attorney  forgot 
the  day  fixed  for  the  trfal.^  And,  in  general,  no  mistake, 
inadvertence,  or  neglect  attributable  to  the  attorney  can 
be  successfully  used  as  a  ground  for  relief,  unless  it  would 
have  been  excusable  if  attributable  to  the  client.*  The 
neglect  of  a  person  who  undertook  to  act  for  the  attor- 
ney is  treated  in  the  same  manner  as  if  committed  by 
the  attorney.  Thus  w^here  the  petitioner's  attorney,  being 
suddenly  called  away,  requested  another  person  to  attend 
the  suit,  and  to  get  an  attorney  to  appear,  and  the  party 
agreed  to  comply  with  the  request,  but  forgot  the  matter 
entirely,  it  was  held  that  the  neglect  of  this  party  could 
only  be  regarded  as  the  neglect  of  the  attorney,  and  that, 
considered  in  that  light,  it  was  not  excusable.*  In  New 
York,  a  default  and  judgment  thereon  were  set  aside  on 
showing  that  proceedings  were  utterly  neglected  by  the 
attorney,  who  was  rendered  incompetent  by  his  habits, 
because  an  attorney  ought  not  to  be  permitted  to  inflict 
unbounded  damage  on  his  client,  there  being  no  redress 
except  the  doubtful  one  of  an  action  for  negligence,* 

§  113.  Mistake.  —  A  mutual  and  honest  mistake  be- 
tween the  defendant  and  an  attorney,  in  relation  to  the 
retainer  of  the  latter,  by  reason  of  which  the  defendant 
was  not  represented  at  the  trial,  authorizes  the  granting 
of  relief  from  the  judgment.^  Where  the  defendants  at- 
tended court  until  the  judge  announced  that  the  cause 
would  not  be  tried  at  that  term,  when  they  left,  and  the 
cause  was  afterward  called  and  judgment  entered,  it  was 

1  People  V.   Rcains,  23  Ccal.  127.  Clark  v.  Ewing,  93  111.  572;  McFarland 

»  Babcock  v.  Brown,  25  Vt.  550;  60  v.  White,  13  La.  Ann.  394. 

Am.  Dec.  290.  *  Webster  v.  McINJahan,  13  Mo.  582; 

^  Spaulding   v.   Thompson,   12  Ind.  Davison  v.  Heffron,  31  Vt.  087. 

477;  74  Am.  Dec.  221;  Smith  v.  Tun-  "  Elston  v.  Schilling,  7  Rob.  (N.  Y.) 

stead,  56  Cal.  175;  Harper  v.  Mallory,  74;    Meacham   v.    Dudley,    6    Wend. 

4  Nev.  447;  Brumbaugh  v.  Stockman,  514. 

83   Ind.    583;   Welch   v.    Challen,    31  «  McKinley  v.  Tuttle,  34   Cal.  235; 

Kan.    096;  Sharp  v.   Moffitt,   94  Tnd.  Panesi  v.  Boswell,  12  Heisk.  323.     Kor 

240;  Kreite  v.  Kreite,  93  Ind.  583;  Tar-  contra  opinion,  see   Kite  v.  Lumpkin, 

rant  Co.  v.  Lively,  25  Tex.  Sup.  399;  40  Ga.  50C. 


§   113  VACATING    JUDGMENTS    UNDER    STATUTES.  166 

opened  upon  application,  accompanied  by  an  affidavit  of 
merits.^  The  mistake  of  defendants  in  concluding  that 
the  judgment  would  not  be  entered  against  them  person- 
ally, but  only  against  them  as  trustees,  that  being  the 
only  capacity  in  which  they  were  liable,  justifies  the  court 
in  vacating  a  judgment  taken  against  them  individually.^ 
Judgment  should  not  be  set  aside  on  the  ground  that  the 
defendant  mistook  the  court  in  which  the  action  was 
pending,^  nor  because  he  did  not  appear  on  account  of 
his  having  no  recollection  of  the  service  of  summons.* 
A  German  was  prosecuted  in  a  criminal  and  in  a  civil 
action  at  the  same  time,  for  obstructing  a  highway.  He 
understood  the  English  language  very  imperfectly,  and 
seemed  to  confound  the  two  actions.  He  attended  to  the 
criminal  action  diligently,  but  was  defaulted  in  the  civil. 
He  applied  on  the  next  day  after  the  entry  of  the  default, 
to  have  the  judgment  set  aside,  and  the  application  was 
granted  on  payment  of  the  attorney's  fees.*  So  where  a 
very  illiterate  man  applied  to  an  attorney,  and  stated  that 
his  goods  had  been  attached,  that  he  did  not  owe  the  debt, 
and  that  he  wished  to  have  the  goods  released,  and  the 
attorne}^  took  proceedings  to  have  the  goods  released,  but 
did  not  make  any  defense  to  the  action,  because  he  did 
not  know  that  any  summons  had  been  served,  the  judg- 
ment was  set  aside,  because  the  defendant,  being  an  illiter- 
ate man,  did  not  know  that  he  need  give  his  attorney  any 
other  information  than  that  his  propert}?-  was  attached, 
and  the  attorney,  by  not  having  further  information,  was 
misled  as  to  the  immediate  necessit}':  of  making  a  defense.* 
The  grounds  of  mistake  most  frequently  relied  upon  for 
relief  are  in  the  fact  of  the  service  of  process,  or  in  the  date 
at  which  the  party  served  must  appear,  or  at  which  the 
action  is  set  for  trial.  Because  the  lower  courts  exercise 
a  discretion  with  which  the  appellate  courts  are  loath  to 

1  Ratliff  V.  Baldwin,  29  lud.  16;  92  *  Lansrdon  v.  Bullock,  8  Ind.  341. 

Am.  Dec.  3.S0.  ^  Bertline  v.  Bauer,  25  Wis.  48(5. 

.  -  Butler  V.  Mitchell,  17  Wis.  52.  «  Nash  v.  Cars,  92  Ind.  216;   Sweet 

^  Robertson  v.  Bergen,  10  Ind.  402.  o.  McGlynn,  5  Pac.  L.  Rep.  155. 


1G7  VACATING    JUDGMENTS    UNDER    STATUTES.         §  113 

interfere,  as  well  as  from  other  causes,  there  is  not  an 
entire  harmony  of  decision  upon  these  subjects,  but  we 
think  it  a  fair  inference  from  the  reported  cases  that  if 
the  court  is  convinced  that  the  alleged  mistake  was  an 
honest  one  and  was  the  sole  cause  of  the  moving  party's 
not  being  represented  at  the  trial  or  not  appearing  in  the 
action  in  due  time,  relief  will  be  granted.  A  court  is 
justified  in  vacating  a  judgment  obtained  in  the  absence 
of  the  defendant  when  he  had  been  led  to  believe  that  the 
cause  would  not  be  tried,  or  had  been  otherwise  misin- 
formed as  to  the  time  of  trial,  and  there  is  no  doubt  of 
his  acting  in  good  faith,^  or  where  the  attorney  overlooked 
the  case  on  the  trial  calendar  by  reason  of  its  being  placed 
there  under  a  title  calculated  to  mislead,  though  he  might 
have  ascertained  that  the  cause  had  been  set  for  trial  by 
inquiring  at  the  clerk's  office,^  though  probably,  in  such 
cases,  if  the  trial  court  had  denied  to  open  the  judgment 
its  action  could  not  have  been  reversed  as  an  abuse  of 
its  discretion.^  So  a  failure  to  appear  or  to  answer  may 
be  excused,  and  a  judgment  resulting  therefrom  may  be 
vacated,  if  the  moving  party  or  his  attorney  mistook  the 
term  day,^  or  supposed  that  a  rule  was  in  force  giving  a 
particular  time  in  which  to  answer,^  or  made  a  mistake 
as  to  the  day  when  summons  was  served,®  or  was  acting 
under  the  belief  that  the  summons  served  was  a  subpoena 
to  attend  court  as  a  witness,  and  this  belief  was  caused  by 
the  officer  who  served  the  process,^  or  the  process  was 
served  on  an  agent  of  a  corporation,  who  by  mistake  sent 
it  to  the  wrong  ofiB.cer  of  the  defendant.^  If,  however,  the 
judgment  was  due  to  a  mistake  of  the  defendant  regard- 
ing his  legal  rights,  resulting  in  the  belief  that  it  would 
be  fruitless  to  answer,  relief  will  not  be  granted,"  nor  will 

^  Cruse  V.  Cunningham,  79  Inrl.  402;  *  Farmers'   Mut.    Fire   lus.    Co.    v. 

Sanders  v.  Hall,  37  Kan.  271;  Jean  v.  Reynolds,  52  Vt.  405. 

Hennessy,  74  Iowa,  348;  Bnena  Vista  ^  English  v.  English,  87  N.  C,  497. 

County  V.  Iowa  Falls   etc.  R.  R.  Co.,  «  j^ei^y  ^  Scott,  53  Cal.  09. 

49   Iowa,  657;   Branch  v.  Walker,  92  '  Hite  v.  Fisher,  76  Ind.  231. 

N.  C.  87.  ^  Houston  etc.  R.  R.  Co.  v.   Burke, 

2  Allen  V.  Hoffman,  12  111.  App.  573.  55  Tex.  323. 

2  OConnor  v.  Ellniaker,  83  Cal.  452,  *  Thacher  v.  Thacher,  125  lud.  489. 


§   114  VACATING    JUDGMENTS    UNDER    STATUTES.  168 

it  be  granted  because  defendant  supposed  the  process  had 
not  been  served  on  him  in  the  mode  required  by  law,  arid 
thought  that  a  copy  of  the  complaint  must  be  given  to 
him,  as  well  as  a  copy  of  the  summons.^ 

§114.  Excusable  Neglect.  —  Where  the  statute  enu- 
merates excusable  neglect  as  one  of  the  grounds  for  vacat- 
ing a  judgment,  it  seems  superfluous  to  name  any  other; 
for  such  other  grounds  as  have  been  named,  to  wit,  mis- 
take, surprise,  inadvertence,  unavoidable  casualty,  or  mis- 
fortune, if  they  or  any  of  them  exist  under  circumstances 
such  as  entitle  the  moving  party  to  relief,  constitute  a 
case  of  excusable  neglect.  The  circumstances  under  which 
a  party  may  be  entitled  to  relief  because  of  his  excusable 
neglect  are  of  infinite  variety.  The  most  familiar  in- 
stances are:  Illness  of  the  party,  or  of  a  member  of  his 
family,^  or  of  his  counsel  or  of  his  family,^  whereby  the 
losing  party  was  prevented  either  from  appearing  in  the 
action  within  the  time  required  by  law  or  from  attending 
at  the  trial;  or  the  death  of  counsel,*  or  by  his  being  called 
away  on  important  business  and  unavoidably  detained  so 
that  he  could  not  reach  the  court-room  until  after  the 
cause  was  called  for  trial ;^  or  because  of  a  misunderstand- 
ing between  parties  and  counsel;^  or  because  counsel  was 
unavoidably  detained  in  the  trial  of  another  cause  in  an- 
other court;'  or  was  otherwise  unavoidably  absent;^  or 
because  an  attorney  entered  the  appearance  of  a  defend- 
ant unintentionally  and  without  authority;^  or  the  moving 
party  was  absent  in  compulsory  attendance  on  a  court,^"  or 
in  the  military  service;"  or,  being  a  married  woman,  her 

1  Churchill  v.  Brooklyn  Life  Ins.  Co.,  ferle  v.  Merchants'  Bank,  32  Ark.  717; 

88  N.  C.  205.  Heaps  ?;.  Hoopes,  68  Md.  383. 

^  Flanagan    v.    Patterson,    78    Ind.  ''  Ellis  v.  Butler,  78  Iowa,  632;  Mc- 

514;  Benedict  v.  Spendifif,  9  Mont.  85;  Arthur  v.  Slawson,  60  Wis.  293. 

Goodhuew.  Meyers,  58  Tex.  405;  Slagle  ^  jyic^rthur   v.    Slawson,    60    Wis. 

V.  Bodner,  75  Ind.  330.  293;    Beall    v.   Marietta,    45   Ga.    28. 

*  Tidwell  V.  Witherspoon,  18  Fla.  Contra,  Claussen  v.  Johnson,  32  S.  C. 
282;  Nye  v.  Swan,  42  Minn.  243.  86. 

*  Kivett  V.  Wynne,  89  N.  C.  39.  »  Stocking  v.  Hoopes,  35  Minn.  207; 

*  Ellis  V.  Butler,  78  Iowa,  633.  Heaps  v.  Hoopes,  68  Md.  383. 
«Beatty  v.  O'Connor,   106  Ind.  81;         '»  Tullis  v.  Scott,  38  Tex.  537. 

Howell  V.  Glover,  65  Ga.  466;   Kup-        "  Piper  v.  Aldrich,  41  Mo.  421. 


169  VACxVTIXG    JUDGMENTS    UNDER    STATUTES.  §   114 

husband,  without  her  authority,  caused  her  attorney  to 
withdraw  her  appearance;^  or  because  defendant  or  his 
attorney  was  prevented  from  attending  the  trial  by  an 
unavoidable  accident^  or  because  the  return  day  was  in- 
correctly stated  in  the  writ;'  or  because  of  the  excusable 
neglect*  or  inadvertence'  of  the  defendant's  attorney;  or 
because  the  cause  was  taken  up  in  the  absence  of  defend- 
ant's counsel,  contrary  to  agreement;^  or  because  of  the 
forgetfulness  of  the  person  to  whom  the  defense  was  com- 
mitted, arising  from  his  financial  troubles;^  or  because 
defendant  acted  on  the  assurance  of  counsel  of  plaintiff 
and  also  of  an  ofiicer  of  the  court  that  the  matter  would 
be  arranged,* 

The  defendant,  as  soon  as  served  with  summons,  set 
about  making  such  inquiries  as  were  necessary  to  his 
defense.  He  was  soon  compelled  to  go  beyond  the  state 
on  important  business,  and  to  remain  away  several  weeks. 
On  returning  home,  he  was  obliged,  by  important  busi- 
ness, to  go  into  another  state,  and  to  remain  there  several 
weeks.  He  constantly  intended  to  prepare  his  answer, 
but  owing  to  his  absence  from  home  and  the  pressure  of 
his  other  engagements,  he  mistook  the  time  when  his  de- 
fault was  due.  The  action  of  the  lower  court  in  refusing 
to  grant  relief  upon  a  showing  of  these  facts  was  reversed 
because  "  the  mistake  arising  from  the  urgency  and  mul- 
titude of  defendant's  business  was  such  a  mistake  as  any 
prudent  and  vigilant  man  might,  under  like  circum- 
stances, fall  into."®  An  affidavit  showing  that  defendant 
had  employed  counsel  and  had  caused  a  subpoena  to  issue 
for  his  witness,  but  had  been  prevented  from  attending 
court  by  the  dangerous  illness  of  his  wife;  that  his  counsel 

1  Crescents.  Co.  v.  CuUins,  125  Ind.         *  Wadsworth  v.  Wadswortli,  81  Cal. 

110.  1S2;  Norwood  v.  King,  86  N.  C.  80. 

•^  Fulweilerr.  Hog's  Back  C.  M.  Co.,         ^  McGauglmey  v.  Woods,    92   Ind. 

S3  Cal.   126;  McGauglmey  v.  Woods,  296. 

92  Ind.  296;  Yetser  v.  Martin,  58  Iowa,         '  Heardt    v.    McAllister,    9    Mont. 

612.  405. 

3  Kimball  v.  Kelton,  54  Vt.  177.  «  Weil  v.   Woodward,    104    N.    C. 

■*  Dougherty    v.    Nevada    Bank,    68  94. 
Cal.  275.  •  Johnson  v.  Eldred,  13  Wis.  482. 


§  114  VACATING    JUDGMENTS    UNDER    STATUTES.  170 

was  provost-marshal,  and  on  account  of  being  engaged  in 
enforcing  the  draft  had  been  unable  to  attend  the  trial, 
—  discloses  such  a  state  of  facts  that  it  would  be  an  abuse 
of  the  discretion  of  the  court  to  refuse  to  vacate  the  judg- 
ment.* A  defendant  who  was  constr actively  served,  and 
was  absent  from  the  state,  suffering  from  such  a  bodily 
disability  as  prevented  his  return,  is  entitled  to  have  his 
default  set  aside.^  That  defendant  was  attacked  by  a 
severe  illness,  during  which  his  life  was  despaired  of  and 
his  mind  so  impaired  that  he  was  incapable  of  making 
his  defense,  is  a  good  ground  for  vacating  a  judgment.^ 
Failure  of  counsel  to  attend  the  trial,  owing  to  his  illness,* 
is  a  sufficient  ground  for  relief,  particularly  if  the  illness 
was  of  such  a  character  that  his  "  forgetfulness  "  is  ex- 
cusable neglect.^  Although  a  stipulation  is  not  binding 
on  the  parties  to  it  unless  made  in  writing,  yet  the 
neglect  of  a  party,  occasioned  by  a  verbal  agreement 
between  himself  and  his  adversary,  is  "excusable."®  And 
where  the  plaintiff  promised  to  call  at  the  defendant's 
office  "  and  fix  the  matter  up,"  and  the  defendant,  relying 
upon  the  promise,  neglected  the  suit,  the  judgment  was 
opened  by  the  court.  An  aj)peal  being  taken,  the  appel- 
late court  thought  that  there  was  negligence  on  the  part 
of  the  defendant,  but  that  it  was  of  the  excusable  nature 
which  the  statute  was  provided  to  relieve;  that  while  it 
was  imprudent  to  rely  on  the  promise,  j^et  it  was  in  ill 
grace  for  the  plaintiff  to  urge  that  the  negligence  occa- 
sioned by  himself  was  inexcusable.^ 

That  the  moving  party  was  mentally  incompetent  to 
make  his  defense,  as  where  he  was,  at  the  time  of  the  ser- 
vice of  process  upon  him,  and  of  the  trial,  insane,  is  suffi- 
cient to  require  that  relief  be  granted,  although  his 
property  has  in  the  mean  time  been  sold  to  an  innocent 

'  Hill  V.  Crump,  24  Ind.  291.  *  Montgomery   Co.  v.  American  E. 

*  Sage      V.      Matheny,      14      Ind.     Co.,  47  Iowa,  91. 

369.  «  Montgomery  v.  Ellis,  6  How.  Pr. 

3  Luscomb    V.     Maloy,     26     Iowa,  326;   Chicago  &  N.  W.  R.  R.  Co.  v. 

444.  Gillett,  38  Iowa,  434. 

*  Bristol  V.  Galvin,  62  Ind.  352.  '  Stafford  v.  McMillan,  25  Wis.  566. 


171  VACATING    JUDGMENTS    UNDER    STATUTES.  §   114 

purchaser  under  process  issued  upon  the  judgment;^  and 
there  are  many  instances  in  which,  though  the  party  is 
not  insane  nor  so  mentally  incompetent  to  attend  to  busi- 
ness as  to  require  the  appointment  of  a  guardian,  yet  he 
is  either  so  ignorant  of  the  language  of  the  country  or  its 
mode  of  business,  or  is  so  simple-minded  and  credulous 
as  to  be  with  the  spirit  if  iiot  within  the  language  of  the 
statute.  In  such  cases  relief  will  generally  be  granted, 
as  where  the  applicant  was  an  elderly  woman  unable  to 
read  or  write  and  did  not  understand  the  nature  of  the 
proceedings  against  her;'^  or  a  Mission  Indian,  ignorant 
and  helpless,  who  for  many  years  had  occupied  lands  for 
the  recovery  of  which  judgment  in  ejectment  was  entered;' 
or  a  married  woman,  physically  and  mentally  helpless, 
whose  husband  had  forged  her  name  to  the  mortgage 
which  the  mortgagor  is  foreclosing  against  her.^ 

No  matter  what  is  the  alleged  cause  upon  which  the 
moving  party  seeks  to  have  a  judgment  against  him 
vacated,  the  court  will  not  relieve  him,  unless  convinced 
that  he  has  acted  in  good  faith  and  that  the  accident 
mistake,  or  other  cause  by  which  he  seeks  to  excuse  him- 
self was  the  real  cause  of  his  suffering  default  or  not  at- 
tending the  trial,  and  that,  notwithstanding  its  existence, 
he  could  not  have  protected  himself  by  the  exercise  of 
reasonable  diligence.  Thus  it  is  not  sufficient  that  he  or 
his  counsel  was  ill,  if  that  illness  was  not  the  cause  of  the 
judgment;^  nor  that  there  was  some  misunderstanding^ 
through  which  counsel  failed  to  enter  proper  pleas,  if  the 
client  was  guilty  of  laches  in  not  giving  any  attention 
to  his  case  himself,  and  in  failing  to  make  any  inquiry 
concerning  it  for  a  long  period  of  timef  or  in  failing  to 
employ  other  counsel,  when  he  heard  his  own  counsel 
would  not  be  able  to  defend  him.''     If  the  defendant  could 

1  Dickerson  v.  Davis,  111  Ind.  433.       non  v.  Harrold,  Gl  Ga.  158;  Johnsou  v. 

*  Ailams  u.  Citizens'  State  Bank,  70  Lindstrom,  114  Ind.  •152;  Edwards  v. 
Ind.  89.  McKay,  73  111.  570. 

3  Byrne  v.  Alas,  68  Cal.  479.  *  Youiigniau  v.  Tonner,  82  Cal.  611; 

*  Clandy  w.  Caldwell.  lOG  Ind.  256.  Schroer  v.  WesscU,  89  111.   113;   Mc- 

*  Sliaffer  v.  Sutton,  49  111.  500;  Gar-  Lean  v.  McLoan,  84  N.  C.  3G6. 
deuhire  v.  Vinson,  39  Ark,  270j  Can-  '  Clark  v.  Ewing,  93  111.  572. 


§  115  VACATING    JUDGMENTS    UNDER    STATUTES.  172 

not  attend  the  trial  because  of  illness  of  himself  or  of  some 
member  of  bis  family,  but  was  represented  by  counsel, 
who,  notwitlistanding,  announced  himself  as  ready,  and 
proceeded  to  trial,  the  judgment  subsequently  recovered 
will  not  be  vacated  because  of  the  absence  of  defendant 
when  his  case  was  tried.^ 

§  115.  Inexcusable  Neglect.  —  Every  suitor  should 
personally  attend  to  his  case,  or  be  represented  by  an  at- 
torney in  fact.  Therefore  an  affidavit  showing  that  the 
defendant  expected  the  witnesses,  whom  he  had  subpoe- 
naed, to  appear  at  the  trial,  and  on  that  account,  and 
because  his  counsel  knew  of  the  defense,  did  not  attend 
personally,  and  the  witnesses  did  not  attend,  and  judg- 
ment was  obtained  on  account  of  their  absence,  there 
being  no  one  present  to  .make  an  affidavit  for  a  continu- 
ance, does  not  show  an  excusable  neglect.  The  duty  of 
the  counsel  did  not  extend  to  procuring  witnesses,  nor 
to  making  affidavits  for  continuances.  The  defendant, 
neither  being  present  to  perform  that  duty,  nor  having 
any  one  to  represent  him  for  that  purpose,  was  culpably 
negligent.^  A  judgment  by  default  should  not  be  vacated 
on  the  ground  of  excusable  neglect  because  the  answer 
required  more  than  ordinary  time  for  its  preparation,  and 
the  attorney  was,  during  a  part  of  the  time,  out  of  town.* 
Any  difficulty  arising  from  this  source  could,  undoubtedly, 
be  obviated  by  an  application  to  the  court  or  the  plain- 
tiff's counsel  for  an  extension  of  time.  An  affidavit  show- 
ing that  defendant,  when  he  retained  counsel  in  the  case, 
was  under  the  impression  that  the  time  to  answer  had  not 
expired;  that  he  did  not  recollect  the  precise  day  when 
the  summons  was  served;  that  he  was  quite  ill  at  the 
time,  and  did  not  as  carefully  note  the  time  as  he  would 
otherwise  have  done,  —  is  entirely  insufficient.  It  does 
not  appear  that  the  illness  of  defendant  extended  beyond 

1  Skinner  v.  Bryce,  75  N.  C.  287.  »  Bailey  v.  Taaflfe,  29  Cal.  422. 

»  Waddell  V.  Wood,  G4  N.  C.  024. 


173  VACATING    JUDGMENTS    UNDER    STATUTES.       §   115  a 

one  (lay;  nor  lliat,  during  that  day,  .it  rendered  him  unfit 
for  ordinary  business.^  The  fact  that  the  defendant  did 
not  appear  and  answer  because  he  supposed  the  summons 
served  on  him  to  be  a  subpoena,^  or  some  paper  in  another 
case;*'  does  not  entitle  him  to  relief.  His  failure  to  exam- 
ine the  paper  is  inexcusable. 

§  115  a.  Surprise  and  Unavoidable  Casualty  and  Mis- 
fortune.—  The  instances  in  which  judgments  have  been 
vacated  for  surprise  are  infrequent;  relief,  when  given  at 
all,  generally  being  placed  upon  some  other  ground.  In 
North  Carolina,  if  an  attorney  employed  to  appear  and 
answer  fails  to  do  so,  the  client  may  be  relieved  from  the 
judgment  on  the  ground  of  surprise,  provided  he  has  not 
been  guilty  of  laches  himself.*  So  where  there  was  a 
petition,  a  demurrer  thereto,  and  also  an  answer,  all  on 
file,  and  the  demurrer  to  the  petition  was  argued  and  sub- 
mitted, and  when  it  was  decided  the  court  not  only  over- 
ruled the  demurrer  but  also  gave  judgment  for  the 
petitioner  on  the  ground  that  the  answer  was  defective, 
it  was  held  that  this  ruling  upon  the  sufficiency  of  the 
answer,  there  being  no  motion  for  judgment  on  the  plead- 
ings, operated  as  a  surprise  to  the  defendant,  and  entitled 
him  to  relief.^  Where  a  judge  was  disqualified  to  try  a 
cause,  and  a  special  judge  was  chosen  in  the  absence  of 
the  defendant,  and  without  his  knowledge  and  that  of  his 
counsel,  and  the  cause  tried  in  his  and  their  absence,  this 
was  held  to  be  a  surprise  justifying  the  granting  of  relief 
from  the  judgment.^  In  most  of  the  states  surprise  is  a 
ground  for  a  new  trial,  and  we  apprehend  that  such  sur- 
prise as  may  be  relieved  from  by  motion  for  a  new  trial  is 

»  Elliott  V.  Shaw,  16  Cal.  377.  dell,  1  N.  Mex.  400;  Bowen  v.  Bragui- 

« State  V.  O'Neil,  4  Mo.  App.  221.  ner,  88  Jiid.  558. 

3  White   V.    Snow,    71    N.    C.    232.  *  Griel  v.  Vernon,  65  N.  C.  76;  Mc- 

For  other  instances  of  neglect  deemed  Lean  v.  McLean,  84  N.  C.  S66;  Whit- 

iaexeusable,  see  Governor  v.  Lassiter,  son  v.   Western  N.   C.   11.  11.  Co.,   95 

83  N.  C.  38;  Lowell  v.  Ames,  6  Mont.  N.  C.  385. 

.'',69;  Bash  v.  Van  Osdal,  75  Ind.  186;  ^  Heilbrou  u  Campbell,  23  Pac.  Rep, 

Birch  V.  Frantz,  77  Ind.  199;  Smythe  10.32. 

V     Kastlor,    10   Neb.    '264;    Brown   v.  "  Bennett  z;.  Jackson,  W.  Va.,  June, 

Hale,  93  N.  C.  188;  Metzger  w.  Wad-  1890. 


§  115  a      VACATING    JUDGMENTS    UNDER    STATUTES.  174 

not  available  on  motion  to  vacate  the  judgment;  in  other 
words,  that  if  the  parties  are  represented  at  the  trial,  and 
are  surprised  by  the  rulings  of  the  court,  or  by  anything 
else  which  takes  place  at  that  time,  they  must  move  for  a 
new  trial,  instead  of  making  an  application  to  vacate  the 
judgment.^ 

Relief  upon  the  ground  of  unavoidable  casualty  or  mis- 
fortune may  be  had  because  of  the  insanity  of  the  moving 
party ,^  or  his  illness,'  or  the  illness  of  his  counsel,*  or  be- 
cause of  a  railway  accident  preventing  his  being  at  the 
trial.^  It  is  fatal  to  the  claim  for  relief  that  a  casualty  or 
misfortune,  conceding  it  to  have  existed,  would  not  have 
injured  the  applicant  had  he  exercised  reasonable  dili- 
gence, after  it  happened,  in  preparing  for  trial  or  otherwise 
attending  to  his  interests.®  If  one  is  ignorant  of  the  Eng- 
lish language,  this  will  not  excuse  him  from  seeking  in- 
formation from  those  who  understand  it,  and  he  cannot, 
after  process  is  served  upon  him,  which  he  did  not  un- 
derstand, neglect  to  obtain  any  information  concerning 
it,  and  after  suffering  judgment  procure  its  vacation  for 
unavoidable  casualty  or  misfortune;'  nor  can  a  married 
woman  disregard  process  served  upon  her,  under  the  sup- 
position that  it  did  not  relate  to  her  individual  rights,  and 
by  insisting  that  her  supposition  was  an  unavoidable 
casualty  or  misfortune,  have  the  judgment  against  her  set 
aside.^ 

^  Breed  v.  Ketchum,  51  Wis.  164.  *  Omro  v.  Ward,  19  Wis.  232. 

«  Bean  v.  Hoflfendorfer,  84  Ky.  685.  « Izard   County   v.    Huddleston,   39 

»Luscomb  V.  Maloy,  26  Iowa,  444;  Ark.  107. 

Brewer    v.     Holborn,    "A    Iowa,    473;  '  Heisterhagen  v.  Garland,   10  Mo. 

Gheer  v.  Huber,  32  Kan.  319.  66;    Heathcote  v.   Haskins,  74   Iowa, 

*  Snell  V.  Iowa  Homestead  Co.,  67  566. 

Iowa,  405.  *  Teabout  v.  Roper,  62  Iowa,  603. 


175  VOID    JUDGMENTS.  §  118 


CHAPTER  VIII. 

VOID   JUDGMENTS -INQUIRIES   IN   COLLATERAL  PROCEEDINGS 
IN  RELATION  TO  THE  JURISDICTION  OF  COURTS  OF  RECORD. 

§  116.  Description  of  void  judgments. 

§  117.  Effect  of. 

§  118.  Jurisdiction. 

§  118  a.     Conflicting  concurrent  jurisdiction. 

§  119.  Sources  of  jurisdiction. 

§  I'^.O.  Jurisdiction  over  tlie  subject-matter. 

§  120  a.     Jurisdiction  over  tlie  person. 

§  120  b.     Jurisdiction  over  corporations. 

§  120  c.     Judgments  void  because  court  exceeded  its  juri.sdiclion. 

§  121.  Loss  of  jurisdiction. 

§  122.  Courts  of  record  and  courts  not  of  record. 

§  123.  Courts  of  record  in  exercise  of  special  authority. 

§  124.  Presumptions  of  jurisdiction. 

§  125.  No  presumption  against  the  record. 

§  126.  Defects  in  process,  and  the  service  thereof. 

§  127.  Constructive  service. 

§  128.  Appearance  by  attorney. 

§  129.  Defaults. 

§  130.  Jurisdictional  findings. 

§  131.  Jurisdictional  inquiries  confined  to  the  record. 

§  132.  Silence  of  record. 

§  133.  Cases  permitting  inquiry  beyond  the  record. 

§  134.  Reasons  for  holding  record  conclusive. 

§  135.  Judgment  never  void  for  error. 

§  135  a.     .Judgments  without  any  issue. 

§  136.  Judgments  void  as  to  some  of  the  parties. 

§  137.  Judgment  for  contempt. 

§  138.  Rendered  on  Sunday. 

§  139.  Rendered  without  authority  of  the  court. 

§  140.  Judgment  after  death  of  defendant. 

§  141.  Against  party  not  named  in  the  record. 

§  142.  When  jurisdiction  over  party  ceases. 

§  143.  Jurisdiction  limited  to  certain  purposes. 

§  144.  Disqualification  of  judges, 

§  145.  Disqualification  of  judges  at  common  law. 

§  146.  Statutory  prohibition. 

§  147.  Judges  sittiu'^  pro  forma. 

§148.  Judges  de  facto. 

§  148  a.  Judgment  wrongfully  altered. 

§116.     Void  Judoinents.  —  The  judgment,  being  for- 
mally entered  upon  the  record,  and  remaining  unaffected 


8  115  VOID    JUDGMENTS.  176 

by  any  proceeding  to  vacate  it  in  the  case  wherein  it  was 
pronounced,  is  likely  to  be  offered  as  evidence  in  some 
other  action  or  proceeding.  The  material  inquiry  then 
arising  is,  whether  this  professed  determination  of  the 
rights  of  the  parties  is  what  it  assumes  to  be,  or  whether, 
from  some  latent  or  patent  infirmity,  it  is  to  be  regarded 
as  waste  paper,  —  a  mere  brutum  fulmen.  The  manner  in 
which  this  inquiry  should  be  conducted,  and  the  sources 
from  which  information  should  be  received,  are  subjects 
over  which  there  has  been,  and  there  still  is,  much  dis- 
cussion and  dissension,  in  which  adverse  conclusions 
have  been  announced  on  either  side  with  an  assurance 
approaching  to  dogmatism.  No  specific  description  of 
void  judgments  can  be  framed  which  does  not  conflict 
with  the  decisions  of  many  of  the  courts.  If  a  judgment 
is  void,  it  must  be  from  one  or  more  of  the  following 
causes:  1.  Want  of  jurisdiction  over  the  subject-matter; 
2.  Want  of  jurisdiction  over  the  parties  to  the  action,  or 
some  of  them;  or  3.  Want  of  power  to  grant  the  relief 
contained  in  the  judgment.  In  pronouncing  judgments 
of  the  first  and  second  classes,  the  court  acts  without  juris- 
diction, while  in  those  of  the  third  class  it  acts  in  excess 
of  jurisdiction.  If  the  want  of  jurisdiction  over  either  the 
subject-matter  or  the  person  appears  by  the  record,  or  by 
any  other  admissible  evidence,  there  is  no  doubt  that  the 
judgment  is  void.  It  has  been  said  that  a  judgment  is 
void  if  "it  emanated  from  a  court  of  limited  jurisdiction 
not  acting  within  its  legitimate  prerogative,  or  in  a  court 
of  general  jurisdiction,  where  the  parties  are  not  actually 
or  by  legal  construction  before  the  court  and  subject  to  its 
jurisdiction.  Judgments  of  courts  of  general  or  compe- 
tent jurisdiction  are  not  considered  under  any  circum- 
stances as  mere  nullities,  but  as  records  importing  absolute 
verity  and  of  binding  efficacy,  until  reversed  by  a  compe- 
tent appellate  tribunal.     They  are  voidable,  not  void. 

1  Ponder  v.  Mosely,  2  Fla.  267;  48  Am.  Dec.  194. 


})  1 


177 


VOID    JUDGMENTS.  8  117 


This  language  goes  beyond  what  would  anywhere  be 
regarded  as  sound  principle,  if  it  is  to  be  understood 
as  asserting  that  aZ^  judgments  of  courts  of  general  juris- 
diction, having  jurisdiction  over  the  subject-matter,  are 
valid.  To  hold  a  judgment  binding,  when  the  record  dis- 
closed a  want  of  authority  over  the  defendant,  would  be 
to  impeach  rather  than  to  sustain  the  absolute  verity  of 
the  record.  Some  judges,  while  refusing  to  permit  any 
inquiry  beyond  the  record,  to  show  that  a  court,  when 
pronouncing  judgment,  did  not  have  jurisdiction  over  the 
defendants,  have  nevertheless  said  that  a  judgment  with- 
out such  jurisdiction  is  void,  but  that  rules  of  evidence 
dictated  by  public  policy  exclude  such  testimony,  not  in 
the  record,  as  is  necessary  to  make  its  void  nature  appar- 
ent. But  the  word  "  void"  can  with  no  propriety  be  applied 
to  a  thing  which  appears  to  be  sound,  and  which,  while 
in  existence,  can  command  and  enforce  respect,  and  whose 
infirmity  cannot  be  made  manifest.  If  a  judgment  ren- 
dered, without  in  fact  bringing  the  defendants  into  court, 
cannot  be  attacked  collaterally  on  this  ground,  unless  the 
want  of  authority  over  them  appears  in  the  record,  it  is 
no  more  void  than  if  it  were  founded  upon  a  mere  mis- 
conception of  some  matter  of  law  or  of  fact  occurring  in 
the  exercise  of  an  unquestionable  jurisdiction.*  In  either 
case,  the  judgment  can  be  avoided  and  made  functus  officio 
by  some  appropriate  proceeding  instituted  for  that  pur- 
pose; but  if  not  so  avoided,  must  be  respected  and  enforced. 

§  117.  Effect  of  Void  Judgments. — A  void  judgment 
is,  in  legal  effect,  no  judgment.^  By  it  no  rights  are  di- 
vested. From  it  no  rights  can  be  obtained.  Being  worth- 
less in  itself,  all  proceedings  founded  upon  it  are  equally 
worthless.^     It  neither  binds  nor  bars  any  one.     All  acts 

1  Allen  V.  Huntington,  2  Aiken,  249;  Dec.  508;  Blanton  v.  Carroll,  84  Va. 
16  Am.  Dec.  702.  539;   ('liicaj,'o   etc.  R.  R.  Co.  v.  Sum- 

2  Agnew  V.  Adams,  26  S.  C.  101;  mers,  113  Incl.  10;  3  Am.  Sfc.  Rep.  015, 
Cain  V.  Go.la,  84  In.l.  '209;  Paul  v.  '  White  ii.  Foote  L.  &  M.  Co.,  29 
Willis,  69  Tex.  261;  Carn.ii  v.  Martin,  W.  Va.  aK5;  0  Am.  St.  Rep.  ()50;  Fur- 
26  N.  J.  L.  594;  69  Am.  Dec.  584;  geson  v.  Jones,  17  Or.  204;  11  Am.  St 
Gray  v.  Fox,  1  N.  J.  Eq.  259;  22  Am.  Rep.  808. 

JVDQ.  I.— 12 


§  118  VOID    JUDGMENTS.  178 

performed  under  it  and  all  claims  flowing  out  of  it  are 
void.  The  parties  attempting  to  enforce  it  may  be  respon- 
sible as  trespassers.  The  purchaser  at  a  sale  by  virtue  of 
its  authority  finds  himself  without  title  and  without  re- 
dress.^ The  first  and  most  material  inquiry  in  relation 
to  a  judgment  or  decree,  then,  is  in  reference  to  its  valid- 
ity. For  if  it  be  null,  no  action  upon  the  part  of  the 
plaintiff,  no  inaction  upon  the  part  of  the  defendant,^  no 
resulting  equity  in  the  hands  of  third  persons,  no  power 
residing  in  any  legislative  or  other  department  of  the 
government,^  can  invest  it  with  any  of  the  elements  of 
power  or  of  vitality.  It  does  not  terminate  or  discontinue 
the  action  in  which  it  is  entered,  nor  merge  the  cause  of 
action;  and  it  therefore  cannot  prevent  the  plaintiff  from 
proceeding  to  obtain  a  valid  judgment  upon  the  same 
cause,  either  in  the  action  in  which  the  void  judgment 
was  entered^  or  in  some  other  action.^ 

§  118,  Jurisdiction.  —  "The  power  to  hear  and  deter- 
mine a  cause  is  jurisdiction;  it  is  coram  judice  whenever  a 
case  is  presented  which  brings  this  power  into  action;  if 
the  petitioner  states  such  a  case  in  his  petition,  that  on  a 
demurrer  the  court  would  render  judgment  in  his  favor, 
it  is  an  undoubted  case  of  jurisdiction."®  "Before  this 
power  can  be  affirmed  to  exist,  it  must  be  made  to  appear 
that  the  law  has  given  the  tribunal  capacity  to  entertain 
the  complaint  against  the  person  or  thing  sought  to  be 
charged  or  affected;  that  such  complaint  has  been  pre- 

^  Campbell  v.  McCahan,  41  111.  45;  Freeman  on  Void  Judicial  Sales,  sec. 

Roberts  v.  Stowers,  7  Bush.  295;  Huls  56;  Griffin  v.   Cunningham,  20  Gratt. 

V.  Buntin,  47  111.  :^97;  Dane's  Abr.,  e.  109;   Lane  v.  Nelson,  79   Pa.  St.  407; 

146,  art.  5,  sees.  1,  8;  Sherrell  v.  Good-  3  Cent.  L.  J.  44;  Denny  v.  Mattoon,  2 

rum,  3  Humph.  430;  Andrews  w.  State,  Allen,  361;  79  Am.  Dec.  784;  Israel  v. 

2Siieed,  550;  Hollingsworth  v.  Bagley,  Arthur,  7  Col.  5;  McDaniel  v.  Correll, 

35  Tex.  345;   Morton  v.  Root,  2  Dill.  19  111.  226;  68  Am.  Dec.  587;  Richards 

312;  Coin.  Bank  v.  Martin,  9  Smedes  v.  Rote,  68  Pa.  St.  248. 

&  M.  613;  Doe  v.  McDonald,  27  Miss.  ■♦  Moore  v.  Haskins,  66  Miss.  496. 

610;  Hargis  w.  Morse,  7  Kan.  417.  MVestern    U.  T.    Co.   v.   Taylor,   84 

2  Kramer  v.   Holster,  55  Miss.  243.  Ga.  408;    Linn  v.   Carson,    32   Gratt. 

'  Pry  or  v.  Downey,  50  Cal.  388;  19  170. 

Am.  Rep.  ^5  5;  Maxwell  w.  Goetschius,  ^  United  States  v.  Arredonda,  6  Pet. 

40  N.  J.  L.  383;    29   Am.  Rep.    242;  709. 


179  VOID    JUDGMENTS.  §   118 

ferred;  and  Uiat  such  person  or  thing  has  been  properly- 
brought  before  the  tribunal  to  answer  the  charge  therein 
contained."  1  There  must  be  a  cause  to  be  heard,  and 
when  the  tribunal  is  a  court  of  record,  sucli  cause  must 
be  submitted  to  it  by  a  complaint  in  writing.^  There  can 
be  no  doubt  that  the  filing  of  a  petition  or  complaint, 
such  as  ought  not  to  be  deemed  sufficient  upon  demur- 
rer, may  confer  jurisdiction.  The  power  to  decide 
upon  the  sufficiency  of  a  cause  of  action  as  presented 
by  the  complainant's  pleading,  like  the  power  to  de- 
cide any  other  legal  proposition,  though  erroneously 
applied,  is  binding  until  corrected  by  some  superior 
authority.'  The  definition  of  the  word  "jurisdiction  "  has 
undergone  various  judicial  modifications  within  the  past 
few  years.  It  was  formerly,  as  we  have  stated,  defined 
to  be  the  power  to  hear  and  determine.  The  supreme 
court  of  California,  not  entirely  satisfied  with  this  defi- 
nition, said  that  "  it  is,  in  truth,  the  power  to  do  both 
or  either;  to  hear  without  determining,  or  to  determine 
without  hearing.'"*  The  later  decisions  of  the  supreme 
court  of  the  United  States  introduce  a  new  element 
in  the  description  of  jurisdiction,  and,  in  effect,  declare 
that  it  is  the  power  and  the  willingness  to  hear  and  de- 
termine. "  Wherever  one  is  assailed  in  his  person  or  his 
property,  there  he  may  defend;  for  the  liability  and  the 
right  are  inseparable.  This  is  a  principle  of  natural  jus- 
tice, recognized  as  such  by  the  common  intelligence  and 
conscience  of  all  nations.  A  sentence  of  a  court  pro- 
nounced against  a  party  without  hearing  him,  or  giving 
him  an  opportunity  to  be  heard,  is  not  a  judicial  deter- 
mination of  his  rights,  and  is  not  entitled  to  respect  in 
any  other  tribunal.*     Where  a  court  having  jurisdiction 

'  Shelrlon  v.  Newton,  3  Ohio  St.  494.  111.  92;  Plume  v.  Howard  S.  T.,  4G  N. 

«  Beckett  V.  Cuenin,  15Col.  2S1;  22  J.    L.    211;    Cooper   v.   Siimlerlaud,   3 

Am.  St.   Rep.    Sr9;  Young  v.  Rosea-  Iowa,  114;  C6  Am.  Dec.  52;  Wood  v. 

baum,  .39  Cal.  654.  Blythe,  40  Wis.  650. 

3  McNamaraon  Nnllitie^i.  1.37;  Rowe  *  Ex  jiarte  Bennett,  44  Cal.  84. 

r.  Palmer,  29  Kan.  .337;  P.mlr.  Smith,  »  Windsor   v.    McVeigh,    93    U.    S, 

82  Ky.  451;  Barnard  v.  Barnard,  119  277;  4  Ceut.  L.  J.  61. 


§  118  VOID    JUDGMENTS.  180 

over  the  subject-matter  causes  its  process  to  be  regularly- 
issued  and  served  upon  the  defendant,  we  should,  but  for 
the  decision  from  which  we  have  just  quoted,  consider 
that  any  irregular,  erroneous,  or  even  arbitrary  act  on  its 
part — such,  for  instance,  as  striking  out  his  answer,  or 
otherwise  refusing  to  consider  his  defense  —  would  be  no 
more  than  the  erroneous  exercise  of  its  jurisdiction,  and 
would  therefore  not  endanger  the  validity  of  its  judgment 
otherwise  than  by  subjecting  it  to  reversal  on  M-rit  of 
error  or  appeal.  But  according  to  the  reasoning  of  the 
supreme  court,  the  issue  and  service  of  process  is  equiva- 
lent to  a  direction  to  the  defendant  to  appear  and  present 
his  defense  for  the  consideration  of  the  court,  and  its  re- 
fusal, after  he  does  so  appear,  to  hear  him  or  to  permit 
him  to  assert  his  rights  is,  in  legal  effect,  a  revocation  of 
its  process,  and  thereafter  it  has  no  other  jurisdiction 
over  him  than  it  had  prior  to  the  issuing  of  such  process.^ 
The  statement  that  jurisdiction  is  the  power  to  hear  and 
determine  is  liable  to  produce  the  impression  that  where 
it  exists  any  determination  which  the  court  may  make  is 
valid,  though  in  excess  of  its  powers  and  liable  to  be  set 
aside  by  appeal  or  by  some  other  correctory  proceeding. 
The  determination  of  an  action  is  not  confined  to  the  de- 
cision of  issues  of  law  and  fact  and  ordering  judgment  for 
one  party  and  against  another,  but  embraces  the  relief 
granted;  and  that  there  should  be  power  to  grant  the  relief 
specified  in  the  judgment  is  as  essential  as  that  there 
should  be  power  to  entertain  the  action  and  dispose  of  the 
issues  of  law  and  fact  therein.     It  is  true  that  there  is 

^  Windsor  v.  McVeigh,  93  U.  S.  278.  could  be  no  hearing  or  opportunity  of 

•'It  was  not,"  said  Mr.  Justice  Field,  being  heard,   and  therefore    could    be 

in  this  case,  "within  the  power  of  the  no   exercise   of  jurisdiction.     By  the 

jurisdiction    of   the    district    court  to  act  of  the  court,  the  respondent  was 

proceed  with  the  case  so  as  to  efifect  excluded  from  its  jurisdiction."     Jus- 

the  rights  of  the  owner  after  his  ap-  tices  Mller,   Brailley,   and  Hunt  dis- 

ptarance  had  been  stricken  out,   and  sented.     Judge  FieKl,  at  page  283,  re- 

the  benefit  of  the  citation  thus  denied,  fers  to  various  instances  which,  in  his 

For   jurisdiction  is  the   right  to  hear  judgment,   involve    such    a    departure 

and  ileterniine,  not  to  determine  with-  from  the  established  modes  of  proce- 

out  hearing.     An<l  where,  as  in  that  dure  as  to  render  a  judguieut  void, 
case,  no  appearance  was  allowed,  there 


181  VOID    JUDGMENTS.  §  118  a 

great  difficulty  in  formulating  any  test  by  which  to  deter- 
mine whether  a  judgment  granting  relief  other  or  in  excess 
of  that  authorized  by  law  may  be  disregarded  as  void,  or 
must  be  treated  as  valid  until  vacated  by  appeal  or  other- 
wise; but  that  it  is  possible  for  a  court  having  jurisdiction 
both  of  the  subject-matter  of  and  of  the  parties  to  an 
action  to  pronounce  a  judgment  so  far  in  excess  of  its' 
powers  as  to  be  wholly  or  partly  void,  we  think  must  be 
conceded.^ 

§  118  a.  Conflicting  Concurrent  Jurisdiction. — It  may 
happen  that  while  an  action  is  pending,  over  the  subject- 
matter  and  parties  to  which  the  court  has  jurisdiction 
another  action  is  commenced,  to  which  the  same  persons 
are  parties,  in  another  court,  involving  the  same  subject- 
matter,  and  it  may  further  happen  that  both  actions 
proceed  to  judgment  and  that  the  judgments  are  wholly 
irreconcilable.  If  so,  then  the  question  arises.  To  which 
shall  be  given  precedence?  The  authorities  agree  that 
when  a  court  has  obtained  jurisdiction  over  an  action,  it 
is  entitled  to  pursue  such  jurisdiction  to  final  judgment, 
and  that,  its  jurisdiction  cannot  be  divested  by  the  bring- 
ing of  another  action  in  a  court  of  concurrent  jurisdiction, 
and  that,  notwithstanding  the  bringing  of  the  second  ac- 
tion, the  court  first  acquiring  jurisdiction  will  not  hesitate 
to  proceed,  irrespective  of  what  may  be  done  in  the  other 
action  by  the  other  court.''  So  far  as  we  are  aware,  no 
instance  has  ever  occurred  in  which  the  court  last  acquir- 
ing jurisdiction  has  proceeded  to  judgment  and  sought  to 
enforce  such  judgment  notwithstanding  the  pendency  of 
the  prior  action.  Generally,  the  conflict  of  jurisdiction  is 
avoided  by  suggesting  to  the  second  court  the  fact  that 

'  See  pott,  sec.  120  c.  Home  Ins.  Co.  v.  Howell,  24  N.  J.  Eq. 

^  Sharon    v.    Terry,    13    Saw.    3S7;  2.39;  Brooks  v.  Delaplaine,  1   Md.  Ch. 

Wallace    v.    McConnell,    13    Pet.    13(3;  354;    Merrill   v.   Lake,    IG    Oliio,    373; 

Taylor  v.  Taintor,  16  Wall.  .3()6;  Shoe-  47  Am.  Dec.  377;  Chapin  v.  James,  II 

makers.  French,  Chase  Dec.  207;  Gay-  R  I.  86;  23  Am.  Re[).  412;  Keatini^  v. 

lord  V.  Ft.  Wayne    etc.   R.   R.   Co.,  G  Spink,  3   Ohio  St.    105;    62  Am.   Dec. 

Biss.  2SG;   Union   M.  L.  I.  Co.   v.  Chi-  214;   H.iines  w.  Rawson,  40  Cia.  356;  2 

cago,   10  Biss.    Ill;    Bank  of  Bellows  Am.  Rep.   581;    Grilliu   v.   Briukhead, 

Falls  V.  Rutland  R.  R.  Co.,  28  Vt.  470;  84  Va.  612. 


§  119  VOID    JUDGMENTS.  182 

another  court  had  previously  acquired  jurisdiction  of  the 
controversy,  and  that,  to  avoid  any  unseemly  conflict, 
the  trial  of  the  second  action  should  be  stayed  until  the 
first  is  disposed  of;  and  in  some  instances,  parties  institut- 
ing the  second  action  have  been  enjoined  from  its  further 
prosecution.  Still,  it  may  happen  that  when  one  of  the 
national  courts  has  acquired  jurisdiction  of  an  action,  one 
of  the  parties  thereto  may  thereafter  resort  to  a  state  court 
and  there  commence  an  action  against  his  adversary,  in- 
volving the  same  subject-matter,  and  thus  attempt  to 
transfer  the  controversy  to  the  state  courts;  and  the 
latter  may,  notwithstanding  any  objections  made,  insist 
upon  proceeding  to  trial  and  judgment.  In  this  event, 
will  its  judgment  be  valid,  or  not?  This  question  seemed 
about  to  arise  in  a  very  celebrated  case,  but  its  decision 
was  finally  rendered  unnecessary  by  the  reversal  of  the 
judgment  of  the  state  court.  So  far  as  any  opinion  was 
expressed  upon  the  subject  in  this  case,  the  courts  of  the 
state  inclined  to  the  view  that  their  judgment  was  not 
void,'  while  the  national  courts,  on  the  other  hand,  were 
obviously  determined,  if  necessary,  to  entirely  disregard 
it.^  It  seems  impossible  that  two  courts  can,  at  the  same 
time,  possess  the  power  to  make  a  final  determination  of 
the  same  controversy  betwe.en  the  same  parties.  If  either 
has  authorit}'-  to  act,  its  action  must  necessarily  be  exclu- 
sive, and  therefore  it  is  our  judgment  that  whenever 
either  the  state  or  the  national  courts  acquire  jurisdiction 
of  an  action  and  the  parties  thereto,  this  jurisdiction  can- 
not be  destroj^ed,  diminished,  or  suspended  by  one  of  the 
parties  bringing  an  action  in  another  court,  and  that  any 
■judgment  or  order  of  the  latter  court  is  void  so  far  as  it 
conflicts  with  any  judgment  or  order  of  the  court  first 
acquiring  jurisdiction. 

§  119.     Sources  of  Jurisdiction,  —  Jurisdiction  is  con- 
ferred upon  courts  by  the  constitution  and  laws  of  the 

>  Sharon  v.  Sharon,  79  Cal.  633.  »  Sharon  v.  Terry,  13  Saw.  387. 


183  VOID    JUDGMENTS.  §  120 

country  in  which  they  are  situate,  ''authorizing  them  to 
hear  and  determine  causes  betAveen  parties,  and  to  carry 
their  judgments  into  effect." '  Jurisdiction  over  the  sub- 
ject-matter is  a  condition  precedent  to  the  acquisition  of 
authority  over  the  parties,  and  is  conferred  by  the  "  au- 
thority which  organizes  the  court,  and  is  to  be  sought  for 
in  the  general  nature  of  its  powers,  or  in  authority  spe- 
cially conferred,"  The  jurisdiction  of  a  court  over  a 
particular  question  or  subject-matter  is  generally  depend- 
ent on  the  act  of  the  parties,  or  of  some  of  them.  Though 
either  the  constitution,  the  statute,  or  the  common  law,  or 
all  combined,  confer  upon  courts  authority  to  hear  and 
determine  causes,  they  are  not  ordinarily  authorized  to 
act  unless  some  petition  or  complaint,  oral  or  WTitten,  is 
presented  to  them  and  relief  sought  from  them  because  of 
the  matters  stated  therein.  Jurisdiction  over  the  person 
is  obtained  by  service  of  process  within  the  jurisdiction 
of  the  court,  or  in  some  other  manner  authorized  by  law, 
as  by  the  voluntary  appearance  of  a  party  during  the 
progress  of  a  cause.  Jurisdiction  over  the  res  "is  obtained 
by  its  seizure  under  process  of  the  court,"  ^  and,  as  we 
shall  hereafter  see,  is  sometimes  conceded  to  exist  tliough 
no  seizure  is  made,  as  where  process  is  served  construc- 
tively, by  publication  or  otherwise.* 

§  120.  Jurisdiction  over  the  Subject-matter.  —  A  judg- 
ment pronounced  by  a  tribunal  having  no  authority  to 
determine  the  matter  in  issue  is  necessarily  and  in- 
curably void,  and  may  be  shown  to  be  so  in  any  colhiteral 
or  other  proceeding  in  which  it  is  drawn  in  question.*  A 
criminal  information  in  the  court  of  common  pleas,  or  a 
common  recovery  or  writ  of  riglit  in  the  king's  bench, 

1  Withers  v.  Patterson,  27  Tex.  49] ;  Ponce  v.  Underwood,  ^5  Ga.  TOl ;  Lyles 

83  Am.  Dec.  64.3.  v.  Bolls,  8  S   C.  258;  Western  U.  T. 

^  C.  oper  V.  Reynolds,  10  Wall.  308.  Co.  v.  Tavlor,  84  Ga.  408;  Beverly  w. 

»Po.<  sec.  120a.  Burke,  9  Ga.  440;  54  Am.  Dec    :^5  ; 

*  Gilliland  v.  Seller's  AdmV,  2  Ohio  S\vii:garfc  v.   Hather,   4  Scam.  8()4;  .^» 

St.  2-23;  Morse  v.  Presby,  5  F..st.  21)9;  Am.    Dec.   418;  St.   Louis  &  h.  C.  (  o 

Eaton  V   Badger,  3.3  N.  H.  228;  Wams-  v.  Sandoval  C.  Co.,  1 1 1  HI.  32;  Frankel 

ley   V.    Robiusou.    28   La.    Ann.    793;  ».  Satterfield,  19  Atl.  Kop.  898  (Del). 


g  120  VOID    JUDGMENTS.  184 

would  be  simply  void,  and  could  not  even  be  pleaded  in 
justification  by  the  officer  of  the  court  who  executed  it.^ 
When  a  tribunal  has  not  jurisdiction  over  the  subject- 
matter,  no  averment  can  supply  the  defect;  no  amount  of 
proof  can  alter  the  case.  As  power  over  the  subject-matter 
is  given  by  law,  nothing  but  an  additional  grant  from 
legislative  authority  can  extend  that  power  over  a  class  of 
cases  formerly  excepted;  and  neither  the  acquiescence  of 
the  parties,  nor  their  solicitations,  can  authorize  any  court 
to  determine  any  matter  over  which  the  law  has  not  au- 
thorized it  to  act.2  The  grant  of  jurisdiction  must  proceed 
from  competent  authority.  Where  a  court  acts  under  and 
by  virtue  of  a  certain  act,  and  such  act  is  unconstitutional, 
its  judgments  are  void.  The  jurisdiction  resting  on  the 
act,  and  the  act  resting  on  no  sufficient  support,  both, 
must  fall.^  Jurisdiction,  being  conferred  by  the  laws  of  a 
state  or  country,  is  necessarily  confined  within  the  terri- 
torial limits  in  which  such  laws  are  operative.  Lands 
and  other  property  situate  in  another  state  or  country  are 
not  within  the  jurisdiction  of  the  courts  of  this  state,  and 
cannot  be  directly  aff'ected  by  their  judgments.*  If,  how- 
ever, the  court  has  jurisdiction  of  the  action  and  the  par- 
ties, and  is  competent  to  give  part  of  the  relief  granted, 
its  judgment,  so  far  as  within  its  powers,  is  valid.  There- 
fore a  judgment  enforcing  a  mechanic's  lien  may,  on  the 

1  Moore  v.   Houston,  3  Serg.   &  R.  Ann.   97;   Irwin's  Succession,   33  La. 

169;  Williamson's  Case,  26  Pa.  St.  9,  IS;  Ann.  63;  Reed  v.  Wright,  2  G.  Greene, 

Case  of  the  Marshalsea,   10  Coke,  68,  15.    Tn  Dower  v.  Johnson,  9  Rep.  329, 

7(3.  100  U.   S.   158,  the  supreme  court  of 

^  Dicks  V.  Hatch,  10  Iowa,  380;  the  United  States  declared  void  a 
State  V.  Fosdick,  21  La.  Ann,  258;  judgment  of  one  of  the  courts  of  Lou- 
Mora  V.  Kuzac,  21  La.  Ann.  754;  isiana,  rendered  against  an  officer  in 
Moore  v.  Ellis,  18  Mich.  77;  Damp  v.  the  military  service  of  the  United 
Town  of  Dane,  29  Wis.  419;  Richard-  States,  for  injuries  resulting  from  the 
son  V.  Hunter,  23  La.  Ann.  255;  Pea-  execution  of  orders  issued  by  him  as 
body  V.  Thatcher,  3  Col.  275;  Fleisch-  such  officer,  on  the  ground  that  the 
man  v.  Walker,  91  111.  318;  Block  v.  courts  of  an  invaded  nation  have  no 
Henderson,  82  Ga.  23;  14  Am.  St.  Rep.  jurisdiction  to  compel  the  officers  and 
138;  Burnley  r.  Cook,  13  Tex.  586;  65  so  diers  of  the  invading  army  to  ac- 
Am.  Dec.  79;  Stanton  v.  Ballard,  133  count  to  them  civilly  or  criminally. 
Mass.  465;  Home  Ins.  Co.  v.  Morse,  2J  *  Wimer  v.  Wimer,  82  Va.  890;  3 
Wall.  451.  Am    St.  Rep.  126;  Lindley  r.  C'Reilly^ 

»  In  re  Fourth  Drainage  Dist.,  34  La.  50  N.  J.  L.  636;  7  Am.  St.  Rep.  802. 


185  VOID    JUDGMENTS.  §   120 

law  conferring  the  lien  being  adjudged  unconstitutional, 
be  treated  as  valid  as  a  personal  judgment  against  the 
defendant.^  It  is  essential  that  the  jurisdiction  of  the 
court  over  a  subject-matter  be  called  into  action  by  some 
party  and  in  some  mode  recognized  by  law.  A  court 
does  not  have  power  to  render  judgment  in  favor  of  one 
as  plaintiff  if  he  has  never  commenced  any  action  or  pro- 
ceeding calling  for  its  action,'^  nor  has  it,  as  a  general 
rule,  power  to  give  judgment  respecting  a  matter  not  sub- 
mitted to  it  for  decision,  though  such  judgment  is  pro- 
nounced in  an  action  involving  other  matters  which  have 
been  submitted  to  it  for  decision  and  over  which  it  has 
jurisdiction.'  A  petition  or  complaint  must  be  filed  in 
the  court  whose  action  is  sought,  or  otherwise  presented 
for  its  consideration  in  some  mode  sanctioned  by  law.  If 
it  is  filed  in  one  court  and  there  dismissed,  and  the  plain- 
tiff thereupon  changes  the  file-marks  so  as  to  make  it 
appear  to  have  been  filed  in  another  court  and  at  a  later 
date,  but  without  changing  its  caption  or  other  contents, 
it  still  remains  a  petition  to  the  court  to  which  it  was  ori- 
ginally presented,  and  does  not  invest  the  other  court 
with  any  jurisdiction  over  the  subject-matter  of  such  peti- 
tion.* It  is  not,  however,  essential  to  the  jurisdiction  of 
the  court  that  the  complaint  in  action  be  filed  within  the 
time  required  by  law,*  nor  by  a  person  entitled  to  main- 
tain the  action.  Hence  a  judgment  in  partition  is  valid 
though  the  plaintiff,  while  he  was  a  proper  party  defend- 
ant, was  not  entitled  to  maintain  the  action.*  The  rule 
that  a  judgment  is  absolutely  void  if  pronounced  by  a 
court  not  having  jurisdiction  of  the  subject-matter  is 
equally  applicable  whether  the  judgment  proceeded  from 
a  court  of  general  or  of  special,  of  foreign  or  of  domestic, 
jurisdiction,  and   whether   the  judgment   is    questioned 

•  Koppket>.  Dyer,  80  Mich.  311.  Blackstnck,    83  Va,    232;   5   Am.    St. 

«  Dunlap  V.  Soutlierlin,  63  Tex.  .38.  Rep.  262. 

3  Mnnily  v.  Vail,    3t  N.   J.   L.   41S;  *  Jordan  v.  Brown,  71  Towa,  421. 

Eeynolds  v.    Stockton,    43   N.   J.    Eq.  *  Uildreth  v.  H:irnev.  62  Iowa,  420. 

211;  3  Am.  St.  Rep.  3U5;  Seaiastcr  v.  *  iiced  v.  Reed,  107  N.  Y.  045. 


§   120  VOID    JUDGMENTS.  186 

directly  or  co^^ate^all3^  But  courts  not  having  jurisdic- 
tion over  a  subject-matter  may,  when  an  improper  case 
is  attempted  to  be  litigated  before  them,  determine  their 
own  want  of  jurisdiction,  and,  as  incident  to  that  deter- 
mination, may  render  judgment  for  costs.* 

Instances  of  want  of  jurisdiction  over  the  subject-matter 
are  found  more  frequently  in  probate  proceedings  than 
elsewhere.  If  the  statute  of  a  state  governing  the  settle- 
ment and  distribution  of  the  estates  of  deceased  persons 
makes  no  provision  concerning  the  estates  of  persons 
who  died  prior  to  the  passage  of  such  statute,  then  an  at- 
tempt to  administer  on  one  of  the  last-named  estates  is  a 
usurpation  of  authority  over  a  subject-matter  not  within 
the  'jurisdiction  of  the  court,  and  the  proceedings  are 
therefore  invalid.^  So  if  a  probate  court  should  make  an 
order  for  the  sale  of  property  situate  in  another  state  than 
the  one  in  which  the  order  is  made,  this  would  also  be  an 
assumption  of  authority  over  a  subject-matter  not  within 
the  jurisdiction  of  the  court,  and  would  be  void.^  This 
rule  has  been  held  to  be  applicable  even  where  personal 
property,  though  in  another  state  at  the  death  of  its 
owner,  was  subsequently  brought  within  the  state  where 
the  order  was  made.*  Courts  of  probate  have  no  power  to 
grant  letters  of  administration,  nor  letters  testamentary, 
on  the  estate  of  a  living  person.  Letters  may  be  granted, 
under  a  mistake  of  fact,  upon  the  supposition  that  the  tes- 
tator or  other  person  is  dead.  The  case  is  nevertheless 
one  in  which  the  court  has  no  jurisdiction.  If  he  who 
was  supposed  to  have  died  is  in  fact  living,  all  probate 
sales  and  other  proceedings  are  void,  and  can  have  no 

'  King    V.    Poole,    36    Barb.    242;  First  Congresational  Society,  4  West 

Gorinly  v.    Mcintosh,   22  Barb.    271;  Coast  Rep.  421;  (56  Cal.  105. 
Jordan  ?\  Dennis,  7  Met.  590;  Blair  u.  ^  Novvler   v.   Coit,    1    Ohio,    519;    13 

Cunimings,  39  Cal.  667;  Burke  v.  Jack-  Am.   Dec.   640;    Salmond  v.   Price,   13 

son,  2-2  Ohio  St.  268.  Ohio,  368;  42  Am.  Dec.  204;  Watts  v. 

■^Downer    v.    Smith,    24    Cal.    114;  Waddle,  6  Pet.  389;  Wills  v.  Cowper, 

Coppincrer  v.  Rice,  33  Cal.  408;  Grimes  2  Ohio,  ]-J4;  Latimer  v.  R.  R.  Co.,  43 

V.  Norris,  6  Cah  621;  65  Am.  Dec.  545;  Mo.   10.1;  97  Am.   Dec.  378;   Price  v. 

Adams  v.  Norris.  23  How.  353;  Tevis  Johnson.  1  Ohio  St.  390. 
V.    Pitcher,    10   Cal.    465;   McNeil  v.         *  Varner  v.  Bevil,  47  Ala.  286. 


187  VOID    JUDGMENTS.  §  120 

effect  on  his  title.^  Grants  of  letters  of  administration 
were  formerly  judged  to  be  void  unless  the  deceased  did 
in  fact  die  intestate.^  Surrogate  and  probate  courts  are 
usually  limited  in  their  jurisdiction  to  a  specified  class  of 
cases.  Thus  it  is  generally  required  that  a  man's  estate 
be  settled  in  the  county  where  he  resided  at  the  time  of 
his  death.  If  it  appears  that  letters  testamentary  or  of 
administration  were  granted  in  a  county  in  which  the  de- 
ceased did  not  reside,  the  whole  proceedings  must  be 
regarded  as  void.^  How  and  in  what  circumstances  this 
fact  may  be  made  to  appear  are  questions  to  which  diverse 
answers  may  be  found  in  the  authorities.  Undoubtedly 
the  records  of  the  court  may  be  inspected.  If  they  show 
the  non-residence  of  the  deceased,  they  are  competent  evi- 
dence of  their  own  invalidity.  If  they  fail  to  assert  any- 
thing about  the  residence,  either  in  the  averments  of  the 
petition  or  in  the  findings  of  the  court,  we  should  judge 
this  to  be  fatal.  In  every  case  it  ought  to  appear,  prima 
facie,   that   the   court   has  jurisdiction   over   the  estate. 

*  Duncan  v.  Stewart,  25  Ala.  408;  60  the   appointees   of    the   court  in   the 

Am.   Dec.  527;   Griffith  v.  Frazier,  8  same  position  as  if   the  decree  never 

Cranch,  9;  Fisk  u.  Norvel,  9  Tex.    13;  existed.      On    the    contrary,    all   acta 

58  Am.  Dec.   128;  Jochumsen  v.  Suf-  done  in  the  due  course  of  administra- 

folk  Sav.  Bank,  3  Allen,  87;  Withers  tion,  while  such  decrees  remained  in 

r.  Patterson,  27  Tex.  496;  86  Am.  Dec.  force,  must   be  held  entirely  valid": 

643;  Beckett  v.  Selover,  7  Cal.  215;  68  Redtield  on  Wills,  pt.  2,  p.  109;  Bige- 

Am.  Dec.  237.     But  a  majority  of  the  low  v.  Bigelow,  4  Ohio,  138;  19  Am. 

court  of  appeals  of  New  York  declared,  Dec.    597;    Kittredge    v.    Folsom,    8 

in  Rodfirigas  v.  East  River  Sav.  Inst.,  N.  H.  98;  Ward  v.  Oakes,  42  Ala.  ^25; 

63  N.  Y.  460,  20  Am.  Rep.  555,  that  a  Jennings     v.    Moses,    38     Ala.     402; 

grant  of  administration  upon  the  es-  Broughton  v.  Bradley,  34  Ala.  694;  73 

tate'  of  a  living  person  was  not  void;  Am.  Dec.  474;  Brock  v.  Frank,  51  Ala. 

but  see  a  further  decision  in  the  same  91.     But  one  who  deals  with  an  execu- 

case,  76  N.  Y.  316;  32  Am.  Rep.  309.  tor  is  not  protected  if  he  has  notice  of 

!*  Holyoke  v.  Haskins,  5  Pick.  24;  16  the  existence  of  a  later  will  than  the 

Am.  Dec.  372;  Brock  v.  Frank,  51  Ala.  one  admitted  to  prohate:  Gaines  v.  De 

91;  Kane  v.  Paul,  14  Pet.  39;  Griffith  la  Croix,  6  Wall.  720. 
V.  Frazier,  8  Cranch,  24.     This  rule  is         *  Beckett  r.  Selover,  7  Cal.   215;  68 

believed  to  be  obsolete  in  the  United  Am.   Dec.  237;  Haynes  v.   Moeks,    10 

States.     In  its  stead  we  have  adopted  Cal.    110;  70  Am.   Dec.   703;  Harlan's 

the  rule  that  a  grant  of  administration.  Estate,  24  Cal.  182;  85  Am.   Dec.  58; 

made  by  a  court  having  jurisdiction  of  Moore   v.   Pliilbrick,   .32    Me.    102;    52 

the  subject-matter  and  of  the  particu-  Am.  Dec.   642;  Munson  v.  Newson,  9 

lar  case,  while  it  remains  unrevoked,  Tex.    109;  Cutts  v.   Haskins,   9  Mass, 

cannot    be   regarded   as  void.      "Nor  543;  Holyoke  v.  Haskins,  5  Pick.   20; 

can  the  recall  or  the  repeal  of  the  ap-  9  Pick.  259;   16  Am.   Dec.  372;  Good- 

poiatmeut  be  fairly  regarded  as  placing  rich  v.  Pendleton,  4  Johns.  Ch.  549. 


§  120  a  VOID   JUDGMENTS.  188 

Usually  a  petition  is  presented  to  the  court  or  judge,  in 
which  the  facts  authorizing  the  assumption  of  jurisdiction 
in  the  particular  case  are  stated.  The  duty  of  the  court 
or  judge  is  to  investigate  and  determine  the  truth  of  these 
jurisdictional  allegations.  Its  subsequent  grant /of  letters 
implies  that  these  allegations  have  been,  found  to  be  true. 
Hence  in  a  case  where  a  probate  court  has,  upon  a  peti- 
tion asserting  the  essential  jurisdictional  facts,  and  after 
notice  to  the  parties  in  interest,  given  in  the  manner  pre- 
scribed by  law,  granted  letters  testamentary  or  of  admin- 
istration, the  proceedings  cannot  be  avoided  collaterally, 
in  the  majority  of  the  states,  by  proof  that  the  deceased 
did  not  die  within  the  jurisdiction  of  the  court.^  Any 
other  rule  would  lead  to  the  most  embarrassing  results. 
The  residence  of  a  deceased  person  can  be  determined 
only  by  hearing  parol  evidence.  Different  judges  may 
reach  opposite  conclusions  from  the  same  evidence.  The 
parties  in  interest  may  at  separate  times  produce  different 
evidence  on  the  same  issue.  If,  after  a  court  had  heard 
and  decided  the  issue  concerning  the  residence  of  the  de- 
ceased, the  question  remained  unsettled  to  such  an  extent 
that  it  could  be  relitigated  for  the  purpose  of  avoiding  all 
the  proceedings  of  the  court,  no  person  would  have  the 
temerity  to  deal  with  executors  or  administrators. 

§  120  a.  Jurisdiction  over  the  Person  of  plaintiff  or 
complainant  is  acquired  by  his  suing  out  some  writ  or 
presenting  to  the  court  a  petition  or  complaint;  or,  in 
other  words,  by  his  voluntarily  submitting  his  cause  to 
its  decision.  The  defendant  may  also  give  the  court 
jurisdiction  by  his  voluntary  action,  as  where  he  appears 
by  his  answer,  or  in  some  other  mode  recognized  by  law.^ 

»  Irwin   V.    Scribner,    18    Cal.    499;  bott,  27  Vt.  581;   65  Am.  Dec.    214; 

Lewis    V.    Dutton,    8    How.    Pr.    103;  Burdett  v.  Silsbee,  15  Tex.  615;  Monell 

Andrews  v.  Avery,  14  Gratt.  236;  72  v.  Demiison,  17  How.  Pr.  422;  Abbott 

Am.   Dec.   355;    Warfield's  Estate,   22  r.  Coburn,  28  Vt.  663;  67  Ain.  Dec.  735; 

Cal.   51;    83    Am.   Dec.   49;   Sutton  v.  Rarborg  »\  Hammond,  2  Har.  &  G.  42. 

Sutton,  13  Vt.  71;  Fisher  r.  Bassett,  9  See  also  Riley  v.  McCord,  24  Mo.  265; 

Leigh,  119;  33  Ain.  Dec.  227;  Barrett  Wight  v.  Wallbaum,  39  111.  554. 
V.  Garney,  33  Cal.  530;  Dnggs  v.  Ab-         «  Letuey  v.  Marshall,  79  Tex.  513. 


189  VOID   JUDGMENTS.  §  120  a 

If  he  does  not  do  so  volnntarily,  then,  hefore  the  court 
can  rightfully  exercise  jurisdiction  over  him,  it  must  be 
authorized  to  require  him  to  appear  before  it  and  submit 
to  its  judgment  in  the  action  or  proceeding,  and  its  process 
requiring  such  appearance  must  be  issued  and  served 
upon  him  in  substantial  compliance  with  the  law.  As  a 
general  rule,  the  authority  of  the  courts  of  every  state  or 
nation  is  restricted  to  the  territory  of  such  state  or  nation, 
and  they  have  no  power  to  require  persons  not  within 
such  territory  to  appear  before  them.  Therefore,  any 
personal  judgment  which  a  state  court  may  render  against 
one  who  did  not  voluntarily  submit  to  its  jurisdiction, 
and  who  is  not  a  citizen  of  the  state,  nor  served  with 
process  within  its  borders,  no  matter  what  the  mode  of 
service,  is  void,  because  the  court  had  no  jurisdiction  over 
his  person.^  To  this  rule  there  is  this  apparent  exception: 
If  a  court  has  jurisdiction  over  an  action  and  the  parties 
thereto,  with  power  to  render,  and  it  in  fact  does  render, 
a  valid  judgment  therein,  from  which  the  losing  party 
has  a  right  to  appeal,  such  process  as  may  be  required  to 
prosecute  an  appeal  to  the  appellate  court  may  be  served 
on  a  non-resident  respondent,  and  if  so  served,  the  judg- 
ment of  the  appellate  court  based  thereon  is  valid.^ 

All  persons  residing  or  being  within  a  state  are  subject 
to  the  jurisdiction  of  its  courts,  whether  their  residence  is 
temporary  or  permanent;  so  that  process  served  upon 
them  within  its  territory  is  as  effectual  to  confer  jurisdic- 

1  Ewer  V.  Coffin,  1  Cush.  23;  48  Eliot  v.  McCormick,  144  Mass.  10; 
Afn.  Dec.  587;  Lovejoy  v.  Albee,  33  Eastman  v.  Dearborn,  63  N.  H.  304. 
Me.  414;  54  Am.  Dec.  630;  Martia  v.  Silver  v.  Luck,  42  Ark.  268;  Pennoyer 
Cobb,  77  Tex.  544;  Latimer  v.  Union  v.  Neff,  95  U.  S.  714;  Hall  r.  Williams, 
Pac.  R'y  Co.,  43  Mo.  105;  97  Am.  Dec.  6  Pick.  2.32;  17  Am.  Dec.  356;  Fol-er 
378;  Paxton  v.  Daniell,  23  Pac.  L.  Rep.  v.  Columbian  Ins.  Co.,  99.  Mass.  267; 
441  (Wash.);  Cudabec  v.  Strong,  67  96  Am.  Dec.  747;  Price  v.  Hickok,  39 
Miss.  705;  Kimmarle  v.  Houston  etc.  Vt.  292;  McEwen  r.  Ziinmer,  38  -Mich. 
R.  R.  Co.,  76  Tex.  686;  Barrett  v.  Mc-  7()5;  31  Am.  Rep.  .••!.32;  Lntz  v.  Kelly, 
AUister,  33  W.  Va.  738;  De  Meli  v.  47  Iowa,  307;  Smith  v.  Eaton,  36  Me. 
De  Meli,  120  N.  Y.  485;  17  Am.  St.  298;  58  Am.  Dec.  746;  Hart  v.  San- 
Rep.  6.52;  Sowders  v.  Edmunds,  76  som,  llOU.  S.  151. 
Ind.123;  Shepard  w.Wriyht,  113N.  Y.  '^Nations  v.  Johnson,  24  How. 
682;  Mickey  v.  Stratton,  5  Saw.  475;  195. 


§   120  a  VOID    JUDGMENTS.  190 

tion  on  a  court  as  if  tliey  were  citizens/  unless  they  are 
ambassadors,  other  public  ministers,  or  consuls  or  vice- 
consuls  of  a  foreign  nation,  in  which  event  the  jurisdiction 
of  the  national  courts  is  exclusive,  and  though  they  appear 
in  such  courts  in  response  to  process  served  upon  them, 
and  answering  the  complaint,  proceed  to  trial  upon  the 
merits,  they  may  at  any  time  avoid  the  judgment  by 
suggesting  that  the  court  did  not  have  jurisdiction  over 
them.^  The  place  of  residence  of  a  foreign  minister  or 
ambassador  is  not  regarded  as  a  part  of  the  state  for  the 
purpose  of  conferring  jurisdiction  on  the  state  courts  over 
him,  his  diplomatic  attendants,  or  his  family  or  servants, 
all  of  whom  are  exempt  from  the  jurisdiction  of  the  state.' 
All  property  within  a  state  is  subject  to  the  jurisdiction 
of  its  courts,^  and  they  have  the  right  to  adjudicate  the 
title  thereto,  to  enforce  liens  thereupon,  and  to  subject  it 
to  the  payment  of  the  debts  of  its  owners,  whether  resi- 
dents or  not.  It  must  be  confessed  that  it  is  somewhat 
difficult,  upon  principle,  to  reconcile  this  statement  with 
the  rule  that  a  court  has  no  jurisdiction  over  persons  who 
are  neither  citizens  nor  residents  of  the  state  whose  tri- 
bunal it  is.  This  difficulty  has  been  solved  by  regarding 
as  quasi  proceedings  in  rem  all  actions  or  proceedings  the 
direct  object  of  which  is  to  affect  the  title,®  or  to  enforfte 
liens  upon  property,  or  to  make  it  contribute  to  the  satis- 
faction of  such  judgment  as  may  be  recovered.  There- 
fore a  judgment  in  partition,^  or  setting  aside  a  conveyance 

1  Mowry  v.  Chase,  100  Mass.  79;  *  Sturgis  v.  Fay,  16  Ind.  429;  79 
Sturgis  V.  Fav,  16  Inrl.  429;  79  Am.  Am.  Dec.  440;  United  States  v.  Fox, 
Dee.  440;  Downer  v.  Shaw,  22  N.  H.  94  U.  S.  315;  Arndt  v.  Griggs,  116 
277;  Murphy  v.  Winter,  18  Ga.  600;  U.  S.  151;  Castrique  v.  Imrie,  L.  R.  4 
March  v.  Eastern  R.  R.  Co.,  40  N.  H.  H.  L.  414. 

548;    77  Am.  Dec.  732;    Molvneux   v.  *  Applegate  v.   Lexington  etc.,    117 

Seymour.  30  Ga.  440;  76  Am.  Dec.  662;  U.  S.  2G6;  Loaiza  v.  Superior  Court,  85 

Alley  V.  Caspari,  80   Me.  234;   6  Am.  Cal.  11;  20  Am.  St.  Rep.  197;  Young  v. 

St.  Rep.  178.  Upshur,  42  La.  Ann.  362:  21  Am.  St. 

2  Miller  v.  Van  Loben  Sels,  66  Cal,  Rep.  381;  Hee  fitter  v.  Elizabeth  Oil 
341;  Boers  v.  Preston,   111   U.  S.  256.  Co..  112  U.  S.  301. 

^  United  States  »).  Benner,  Bald.  234;  "Williams   v.    Westcott,    77    Iowa, 

Ex  parte  Cabrera,  1  Wash.  C.  C.  232;  332;  14  Am.  St.  Rep.  287;  Wunstel  v. 

Uni;ed  States  v.  Lafoutauie,  4  Crauch  Landry,  39  La.  Ann.  312;  Taliaferio  tv 

C.  C.  173.  Butler,  77  Tex.  578. 


191  VOID    JUDGMENTS.  §   120  a 

as  fraudulent/  or  for  specific  performance  of  a  contract  to 
convey  real  estate,^  or  condemning  lands  in  the  exercise  of 
the  right  of  eminent  domain,'^  or  foreclosing  liens,  or  de- 
termining conflicting  claims  to  real  estate  and  quieting 
title  thereto/  is  valid  even  against  non-residents,  though 
based  upon  constructive  service  of  process.  So  where  an 
action  is  to  enforce  a  pecuniary  liability,  and  during  its 
pendency  the  property  is  levied  upon  under  a  writ  of 
attachment  issued  therein,  whether  by  taking  it  into  the 
actual  possession  of  the  attaching  officer  or  not,  and  the 
defendant  is  a  non-resident  constructively  served  with 
process,  the  judgment  against  him  is  so  far  valid  that  it 
may  be  enforced  by  the  sale  of  the  property  attached, 
though  in  all  other  respects  it  is  inoperative.*  In  actions 
of  this  class,  as  authorii^ed  by  the  statutes  in  most  of  the 
states,  though  property  is  attached,  the  service  of  process, 
by  publication  or  otherwise,  is  essential  to  confer  juris- 
diction to  enter  judgment,  and  a  judgment  without  such 
service  is  void.®  In  all  cases  in  which  a  defendant  does 
not  voluntarily  appear,  service  of  process  upon  him  in 
some  mode  authorized  by  law  is  indispensable,  and  if  it 
appears,  even  in  a  collateral  proceeding,  that  any  judg- 
ment has  been  rendered  against  one  who  has  neither 
voluntarily  appeared  nor  been  served  with  process,  it  must 
be  treated  as  void.^ 

'  Adams  v.   Cowles,  95  Mo.  501;  6  e.SO;   Easterly  v.  Goodwin,    35   Conn. 

Am.  St.  Rep.  74;  Lane  v.  Innes,  43  273;    95   Am.    Dec.    3'J7;    Johnson   v. 

Minn.  136.  Dodge,  19  Iowa,  106;  Payne  v.  Wither- 

^  Boswell's  Lessee  v.    Otis,   9   How.  spoon,     14    B.     Mon.    270;    Stone    v. 

330;  Felchv.  Hooper,  119  Mass.  52.  Meyers,  9  Minn.   .SOS;   86  Am.   Dec. 

3  Hilling  V.   Kaw  Valley  R.  R.  Co.,  101;  Freeman  v.  Alderson,  119  U.  S. 

130  U.  S.  559.  1S5. 

*  Arndt  v.  Grigcrs,    134  U.   S.   316;  ^  Great  W.  M.  Co.  v.  Woodmas  etc. 

Watson  V.  Ulbricli,  18  Neb.  ISO;  Cloyd  Co.,  12  Col.  46;  13  Am.  St.  Rep.  204; 

V.  Trotter,  118  III.  391;  Essig  v.  Lower,  Barber  v.  Morris,  37  Minn.  194;  5  Am. 

120  Ind.  239;  Perkins  v.  Wakeham,  86  St.  Rep.  836. 

Cal.   580;    21  Am.   St.   Rep.   67;  Ven-  '  Fanner  d.  Hafley,  38  La.  Ann.  232; 

able  V.  Dutch.  37  Kan.  515;  1  Am.  St.  Boyd  v.  Roane,  49  Ark.  397;  Earl  v. 

Rep.  LT)0;  Bennett  v.  Fenton,  41  Fed.  Cureton,  13  S.  C.  19;  Condry  ?'.  C'liesh- 

Rep.  2Si.  ire,   88   N.   C.  375:   Dorr  v.   Rohr,    82 

"Anderson  v.  GofiF,  72  Cal.  65;  1  Va.  359;  3  Am.  St.  Rep.  106;  Gre<,'ory 
Am.  St.  Rep.  34;  Eastman  v.  Wad-  v.  Stetson,  133  U.  S.  579;  Cassidy  v. 
leigh,  65  Me.  251;  20  Am.  Rep.  695;  Woodward,  77  Iowa,  355;  Duncan  v. 
Tab!erw.  Mitcliell,  0"/ Miss.  437;  Love-  Gerdiiie,  59  Miss.  550;  Arthur  v.  la- 
joy  V.  Albee,  33  Me.  414;  54  Am.  Dec.  rael,  15  Col.  147. 


§  120  a  VOID   JUDGMENTS.  192 

If  there  are  two  or  more  defendants,  there  is  no  author- 
ity to  enter  judgment  against  all  until  all  have  been  served, 
unless  it  can  be  found  in  the  provisions  of  some  statute  in 
force  in  the  state;  ^  and  though  there  is  such  a  statute  in 
existence,  before  judgment  affecting  one  not  served  can 
be  validated  by  it,  it  must  appear  that  the  action  or  pro- 
ceeding in  which  it  was  rendered  was  prosecuted  under 
and  in  conformity  to  such  statute.^  If  a  partnership  is 
doing  business  in  a  state  or  country  of  which  some  of  its 
members  are  non-residents,  there  is  no  doubt  that  upon 
service  of  process  upon  the  resident  defendants  a  judg- 
ment may  be  entered  which  will  bind  them  personally  and 
be  enforceable  against  the  partnership  assets  found  within 
the  jurisdiction  of  the  court.*  It  has  been  contended  that 
a  statute  authorizing  judgment  to  be  entered  against  a 
partnership,  or  against  persons  jointly  indebted,  on  ser- 
vice of  process  on  some  only  of  the  persons  jointly  liable, 
enforceable  ag'ainst  those  served  and  against  the  joint 
property  of  all,  is  unconstitutional,  on  the  ground  that  it 
deprives  those  not  served  of  property  without  the  process 
of  law.  That  a  judgment  cannot  be  given  any  effect 
against  a  partner  or  other  joint  debtor  personally  must 
be  conceded  in  all  cases  where  it  clearly  appears  that  pro- 
cess has  not  been  served  upon  him,  and  he  has  not  volun- 
tarily appeared  in  the  action.  It  will  not  support  a  levy 
made  on  his  individual  property  nor  an  action  against 
him  to  obtain  another  judgment,  nor  will  it  even  stop  the 
running  of  the  statute  of  limitations.'*  It  is  also  doubtful 
whether,  in  case  the  defendants  are  joint  debtors  merely, 
a  judgment  against  all,  based  upon  personal  service  upon 
some  only,  can  be  enforced  against  property  which  they 
own  as  co-tenants,  so  as  to  deprive  a  defendant  not  served, 

^Gaiennie   v.  Akin,   17   La.   42;  .%  Cal.  389;  Hamilton  r.  Rogers,  67  Mich. 

Am.    Dec.   604;    Hall    v.  Lanning.    91  135. 

U.  S.  166;  Landsbreg  v.  Bullock,  79  ^  Winters  v.  Means,  25  Neb.  241;  13 

Mich.     278;     Proctor     v.     Lewis,     50  Am.  St.  Rep.  489;  Leese  v.  Martin,  L. 

Mich.  329;  Junkansw.  Bergin,  64  Cal.  R.  13  Eq.  77;  Gunzberg  v.  Jacobson, 

203.  39  Mioh.  80. 

•^  Davidson   v.    Knox,    67   Cal.   143;  *  Tay  v.  Hawley,  39  Cal.  95;  Bruea 

Garden  S.  &  M.  L  W.  v.  Davidson,  73  v.  Bokee.  4  Deuio,  56;  47  Am.  Dec.  239. 


193  VOID   JUDGMENTS.  §  120  a 

of  his  share  or  interest  in  such  property;  but  as  to  a  part- 
nership, it  is  competent  for  the  legislature  of  a  state  to 
authorize  a  judgment  to  be  entered  against  it  upon  service 
of  process  upon  any  one  or  more  of  the  partners,  enforce- 
able against  the  partnership  property  and  the  individual 
property  of  the  partners  so  served.^ 

Various  questions  may  arise  as  to  whether  facts  claimed 
to  constitute  an  alleged  appearance,  or  service  of  process, 
are  sufficient  to  bring  the  defendant  within  the  jurisdic- 
tion of  the  court.  We  cannot  undertake  to  here  state  fully 
what  will  be  deemed  an  appearance  by  a  defendant  nor 
what  a  sufficient  service  of  process  upon  him.  It  has 
been  held  that  the  fact  that  one  was  made  a  party  defend- 
ant on  his  own  motion  did  not  authorize  the  entry  of  his 
default  without  any  farther  notice  or  process;^  that  a 
motion  to  set  aside  judgment  and  for  leave  to  plead,  if 
denied,  left  the  question  of  jurisdiction  just  as  it  was  be- 
fore;^ and  that  the  overruling  of  a  motion  for  a  new  trial 
cannot  cure  a  default  void  for  want  of  jurisdiction,  unless 
it  appears  that  the  motion  was  made  or  authorized  by  the 
defendant.-*  It  is  obvious  that  any  proceeding  taken  by  a 
defendant  for  the  purpose  of  obtaining  relief  from  a  judg- 
ment, on  the  ground  that  it  was  rendered  against  him 
without  first  acquiring  jurisdiction  over  him,  and  any  ap- 
pearance made  professedly  for  a  special  purpose,  ought 
not  to  be  held  to  give  the  court  jurisdiction  over  the  de- 
fendant, except  to  the  extent  of  hearing  and  determining 
the  question  which  he  specially  presents  to  it  for  con- 
sideration. 

As  a  general  rule,  the  jurisdiction  of  courts  in  an  action 
is  confined  to  the  parties  thereto,  and  must  be  procured 
in  some  mode  sanctioned  by  law.  Though  there  are 
rights  and  causes  of  action  arising  out  of  or  connected 

1  Patten  v.  Cunnington,  63  Tex.  6G6;         ^  pagan  v.  Barnes    14  Fla.  53. 
Burnett    v.    Sullivan,    58    Tex.    5S5;         '  «lo»4  ^-  P'f ^f  %,  ^^  ^^O;  357. 
Johnson    V.    Lough,    22    Minn.    203;         *  Martmu  Cobb,  i7  lex.  544;  God- 

Harker  v    Brink    24  N.    J.    L.  333;  frey  v.  Valentine,  39   Mum.  336;   12 

Sugg  V.  Thornton,  132  U.  S.  524.  Am.  St.  Rep.  657. 

JUDQ.  I.  — 13 


§  120  b  VOID   JUDGMENTS.  194 

with  the  action  before  the  court,  it  has  not,  unless  author- 
ized by  statute,  power  to  compel  the  attendance  of  persons 
before  it  by  notice  or  citation,  and  to  give  such  judgments 
against  them  as  might  be  proper  in  an  action  instituted 
against  them  and  conducted  in  conformity  with  the  law 
governing  such  action.  Hence  where  one  who  had  be- 
come a  surety  on  the  bond  of  a  purchaser  at  a  judicial 
sale  was  upon  motion  and  notice  brought  before  the  court, 
and  a  judgment  thereupon  entered  against  him,  it  was  ad- 
judged to  be  void  because  not  in  conformity  to  established 
modes  of  procedure.* 

§  120  b.  Jurisdiction  over  Corporations.  —  A  corpora- 
tion, for  the  purposes  of  a  suit,  is  a  person,  and,  like  a 
natural  person,  may  be  either  resident  or  non-resident. 
Its  residence  is  in  the  state  under  whose  laws  it  was  cre- 
ated,^ and  there  it  may  be  served  with  process  in  such 
mode  as  the  laws  of  the  state  prescribe.^  As  long  as  a 
corporation  confines  its-  business  to  the  state  of  which  it 
is  by  law  a  resident,  the  courts  of  other  states  can  exer- 
cise no  jurisdiction  over  it,  except  to  the  same  extent  as 
over  other  non-residents.  If  its  officers  go  into  another 
state,  they  do  not  take  it  with  them,  and  service  of  process 
upon  them  there  cannot  confer  upon  its  courts  jurisdiction 
to  render  a  judgment  against  it  which  can  be  enforced 
elsewhere,  but  may  probably  operate  as  a  constructive 
service,  sufiicient,  in  connection  with  the  attachment  of  its 
property  within  the  state,  to  support  a  judgment  enforce- 
able out  of  the  property  so  attached.*     So  far  as  a  foreign 

^  Anthony  v.  Kasey,  83  Va.  33S;  5  ble  principal  to  whom  it  can  be  de- 
Am.  St.  Rep.  277;  Thurman  v.  Mor-  livered.  For  a  discussion  of  the  ques- 
gan,  79  Va,  367.  tion  upon  what  agents  of  a  corporation 

^  Railway  Co.  v.  Whitton,  13  Wall,  process  against  it  must  be  served    see 

270;  St.  Clair  v.  Cox,   106  U.  S.  350;  note  to  Hampson  v.  Weare,  66  Am. 

Western  U.  T.  Co.  v.  Dickinson,  40  Dec,  119. 
Mo.  444;  13  Am.  Rep.  295.  *  Peckhamr.  North  Parish,  16  Pick. 

»  New  Albany  &  S.  R.  R.  Co.  v.  Til-  286;  Latimer  v.  U.  P.  R'y,  43  Mo.  105; 

ton,  12  Ind.  3;  74  Am.  Dec.  195.     The  97    Am.    Dec.    378;   State  v.  Ramsey 

service  of  process  must  necessarily  be  Dist.   Ct.,  26  Minn.  234;  McQueen  v. 

upon  the  officers  and  other  agents  of  a  Middletln  M.  Co.,  16  Johns.  5. 
corporation,  because  there  is  no  taiigi- 


195  VOID    JUDGMENTS.  §  120  b 

corporation  has  or  claims  property  within  a  state,  we 
doubt  not  that  its  courts  may  authorize  actions  affecting 
the  title  to  or  enforcing  liens  against  such  property,  to  the 
same  extent  as  if  the  corporation  were  a  non-resident 
natural  person.  A  corporation,  like  a,  natural  person, 
may  voluntarily  subject  itself  to  the  jurisdiction  of  a 
court,  either  by  commencing  an  action  therein  or  by  ap- 
pearing in  an  action  against  it,  without  objecting  to  the 
jurisdiction  of  the  court,  and  having  done  so,  is  bound  by 
the  judgment  to  the  same  extent  as  a  natural  person, 
whether  the  court  could  have  rightfully  exercised  juris- 
diction against  its  objections  or  not/ 

If  a  corporation  is  authorized  by  the  laws  of  a  state, 
other  than  that  of  its  creation,  to  do  business  in  the  for- 
mer, and  to  there  have  the  same  privileges  and  exercise 
the  same  powers  as  in  the  state  of  its  creation,  and  it 
avails  itself  of  the  privileges  and  exercises  the  powers 
thus  conceded,  it  consents  to  the  assumption  by  the  courts 
of  the  former  state  of  jurisdiction  over  it  in  proceedings 
arising  out  of  transactions  within  its  territory;^  and  we 
apprehend  that  if  a  corporation  engages  in  business  in 
another  state  than  that  of  its  creation,  even  in  the  ab- 
sence of  any  express  authorization  by  law,  its  courts  may 
acquire  jurisdiction  over  such  corporation  by  service  of 
process  on  its  resident  agents  in  the  mode  provided  by 
the  local  laws.^  In  many  of  the  states,  statutes  have  been 
enacted  by  which  foreign  corporations  are  forbidden  to 
do  business  therein  unless  they  first  designate  some  offi- 
cer or  agent  upon  whom  service  of  process  against  them 
may  be  made.     If  a  corporation,  pursuant  to  such  statute, 

'  Pierce  v.  Equitable  L.  A.  Soc,  145  Hannibal  R.  R.  v.  Crane,  102  111.  254; 
Mass.  146;  1  Am.  St.  Rep.  433;  North  Bawknight  v.  L.  S.  &  G.  M.  Co.,  55 
M.  R.  R.  Co.  V.  Akers,  4  Kan.  388;  9G  Ca.  195;  Merriwether  v.  Bank  of  Ham- 
Am.  Dec.  183;  March  v.  Eastern  R.  R.  burg.  Dud.  (Ga.)  36;  Hartford  C.  F,  I. 
Co.,  46  N.  H.  548;  77  Am.  Dec.  ^:^2.  Co.  v.  Carriage,  40  Ga.  670;  Moulin  v. 

''■  Baltimore  &  O.  R.  R.  v.  Gallahue's  Insurance  Co.,  24  N.  J.  L.  24;  Colorado 

Adm'r,  12Gratt.  655;  68  Am.  Dec.  254;  I.  W.  v.  Sierra  Grande  M.  Co.,  15  Col. 

Railroad  Co.  V.  Harris,  12  Wall.  65.  499;   22   Am.  St.  Rep.;   Milk   Co.  v. 

3  Lafayette  Ins.   Co.   v.  French,   18  Brandenburgh,  40N.  J.  L.  112;  Newby 

How.    404;   Mineral   Point   R.    R.    v.  v.  Colt's  Firearm  Co.,  L.  K.  7  Q.  B. 

Keep,    22   III.   9;   74   Am.   Dec.    124;  293. 


§  120  C  VOID   JUDGMENTS.  196 

designates  such  officer  or  agent,  service  of  process  upon 
him  is  effectual  to  give  the  courts  of  such  state  jurisdic- 
tion over  it,  and  a  judgment  suj)ported  b}''  such  service  is 
as  valid  as  if  rendered  by  the  courts  of  the  state  of  which 
the  corporation  is  a  resident,  upon  due  service  of  process 
on  it  there;*  and  even  where  a  foreign  corporation  does 
business  in  a  state  without  complying  with  its  statute  re- 
quiring the  designation  of  an  agent  on  whom  service  of 
process  can  be  made,  it  will  probably  not  be  permitted  to 
urge  its  non-observance  of  the  law  for  the  purpose  of 
avoiding  the  jurisdiction  of  the  courts  of  the  state.^  To 
entitle  a  judgment  rendered  against  a  corporation  in  a 
state  of  which  it  is  not  a  resident  to  full  faith  and  credit 
in  another  state,  it  must  appear  by  the  record  either  that 
the  corporation  voluntarily  submitted  itself  to  the  juris- 
diction of  the  court,  or  was  doing  business  within  the 
state;  and  in  the  latter  contingency,  the  corporation  will 
be  permitted  to  attack  and  avoid  the  judgment  by  show- 
ing that  the  person  on  whom  process  was  served  as  its 
officer  or  agent  was  not  such,  or  did  not  occupy  such  re- 
lation to  it  as  authorized  process  against  it  to  be  served 
upon  him.* 

§  120  c.  Judgments  Void  because  the  Court  Exceeded 
its  Jurisdiction.  —  It  is  very  easy  to  conceive  of  judgments 
which,  though  entered  in  cases  over  which  the  court  had 
undoubted  jurisdiction,  are  void  because  they  decided 
some  question  which  it  had  no  power  to  decide,  or  granted 
some  relief  which  it  had  no  power  to  grant,  and  yet  it 
will  probably  not  be  possible  to  formulate  any  test  by 
which  to  unerringly  determine  whether  the  action  of  the 
court  is  in  similar  cases  void,  or  erroneous  only.  If  a 
court  grants  relief  which,  under  no  circumstances,  it  has 
any  authority  to  grant,  its  judgment  is  to  that  extent  void; 

1  Lafayette  Ins.    Co.  v.   French,  18  Co.,  25   N.    J.    L.    67;   64   Am.   Dec. 

How.  404;  Ex  parte  Schollenberger,  96  412. 

U.  S.  369;  Goodwin  v.  Colorado  M.  &  ^  Hagerman  v.  Empire  Slate  Co.,  97 

I.  Co.,   110  U.  S.    1;  St.  Clair  v.  Cox,  Pa.  St.  534. 

106  U.  S.  350;  Capen  v.  Pacific  M.  L  ^  gt.  Clair  v.  Cox,  106  U.  S.  350. 


197  VOID    JUDGMENTS.  §  120  C 

as  where  it  orders  a  donation  out  of  the  public  treasury,* 
or  enters  judgment  for  an  amount  greater  than  it  is  au- 
thorized to  give  judgment  for  in  any  event,^  or  where,  on 
a  conviction  in  a  criminal  prosecution,  the  court  sentences 
the  defendant  to  undergo  a  punishment  different  from  or 
in  excess  of  that  which  it  is  authorized  to  impose  for  the 
offense  of  which  he  was  convicted.^  So  it  has  been  held 
that  a  judgment  rendered  by  a  justice  of  the  peace  against 
a  prosecuting  witness  for  costs,  when  there  was  no  finding 
that  the  prosecution  was  instituted  without  probable  cause 
or  through  malicious  motives,  is  void  for  want  of  power 
in  the  justice  to  enter  such  judgment.^  In  some  instances 
courts  have  undertaken  to  decide  questions  not  involved 
in  the  suit  or  action  before  them,  and  to  grant  relief 
therein;  and  their  judgments  have  been  assailed  for  that 
reason,  and  to  the  extent  which  they  departed  from  the 
matters  embraced  within  the  record  they  have  been  de- 
nied effect.  Where  a  creditor  instituted  an  action,  alleging 
that  he  had  loaned  money,  relying  on  a  promise  that  he 
should  be  given  a  mortgage  as  security  therefor  upon 
certain  land,  and  that  the  borrower  had  conveyed  such 
land,  in  trust,  for  himself  and  his  wife  for  life,  with  re- 
mainder to  his  children,  and  asked  that  the  trust  be 
declared  void  with  respect  to  his  claim,  and  the  court, 
proceeding  beyond  the  prayer  of  the  bill,  annulled  the 
deed  as  between  the  trustee  and  the  cestuis  que  trust,  and 
thereby  attempted  to  destroy  the  estate  of  the  latter,  it 
was  held  that  this  part  of  its  decree  was  void.*    In  a  later 

>  Bridges  v.  Clay   Co.  Supervisors,  be  adjudged  belongs;    2.   The  proper 

67  Miss.  252.  parties  must  be  present;   and  3.   The 

»  Feiliett  v.  Engler,  8  Cal.  76.  point  decided   must   be,  in  substance 

»  Ex  parte  Lange,  18  Wall  163;  post,  and  efifect,  within  the  issue.     That  a 

sec    625.  court  cannot  go  out  of   its  appointed 

♦Little  V.  Evans,  41  Kan.  578.  sphere,  and  that  its  action  is  void  with 

*  Munday  v.  Vail,  43  N.  J.  L.  418,  respect  to  persons  who  are  strangers 

In  this  case  the  court  said:   "Jurisdic-  to    its    proceedings,    are    propositions 

tion  may  be  defined  to  be  the  right  to  established  by  a  multitude  of  authori- 

adjudicate    concerning     the    subject-  ties.     A  defect  in  a  judgment  arising 

matter  in  the  given  case.     To  consti-  from  the  fact  that  the  matter  decided 

tute  this    there  are    three    essentials:  was  not  embraced  within  the  issue  has 

1.   The  court  must  have  cognizance  of  not,   it   woulil    seem,   received    nuich 

the  class  of  cases  to  which  "the  one  to  judicial    consideration.      And   yet    I 


§   120  C  VOID    JUDGMENTS.  198 

case  in  the  same  state,  the  doctrine  of  the  case  last  cited 
was  reaffirmed,  and  the  general  rule  promulgated  that  "a 
judgment  or  decree  which  is  not  appropriate  to  any  part 
of  the  matter  in  controversy  before  the  court  cannot  have 
any  force."  ^  Where  a  widow  brought  suit  for  the  sole 
purpose  of  having  her  dower  assigned  to  her,  and  the 
court,  after  assigning  it  of  its  own  accord,  directed  the  sale 
of  the  residue  of  the  land  for  division  among  minor  heirs, 
the  decree  of  sale  was  adjudged  void.^  A  statute  of  the 
state  of  Missouri  authorized  a  statutory  foreclosure  of  mort- 
gages and  a  judgment  for  the  sale  of  the  premises  and  a 
personal  judgment  against  the  mortgagor.  A  court  of 
general  jurisdiction  at  law  and  in  equity,  proceeding  un- 
der this  statute,  rendered  against  the  vendee  of  the  mort- 
gagor a  foreclosure,  and  also  a  personal  judgment.  This 
personal  judgment,  in  an  elaborate  opinion,  was  held  to 
be  void,  on  the  ground  that,  in  addition  to  having  juris- 
diction over  the  subject-matter  and  of  the  person,  the 
court  must  be  authorized  to  give  the  kind  of  relief  which 
its  judgment  assumes  to  grant.'  In  most  of  the  cases 
cited,  the  judgment  or  decree  disposed  of  a  subject-matter 

cannot  doubt  that,  upon  general  prin-  such  a  case  the  court  would  have  acted 

ciples,    such   a   defect    must   avoid   a  within  the  field  of  its  authority,  and 

judgment.     It  is  impossible  to  concede  the  proper   parties  would  have  been 

that  because  A  and  B  are  parties  to  a  present;  the  single  but  fatal  flaw  hav- 

suit,  that  a  court  can  decide  any  mat-  ing  been  the  absence  from  the  record 

ter    in    which     they    are     interested,  of  any  issue  on  the  point  determined, 

whether   such  matter   l)e  involved  in  The  invalidity  of  such  a  decree  does 

the  pending  litigation  or  not.    Persons,  not  proceed  from  any  mere  arbitrary 

by   becoming    suitors,    do    not    place  rule,  but  it  rests  entirely  on  the  ground 

themselves  for  all  purposes  under  the  of  common  justice.     A  judgment  upon 

control  of  the  court,  and  it   is   only  a  matter  outside  of  the  issue  must,  of 

over  those  particular  interests  which  necessity,  be  altogether  arbitrary  and 

they  choose  to  draw  in  question  that  unjust,  as  it  concludes  a  point   upon 

a  power  of  judicial  decision  arises.    If,  which  the  parties  have  not  been  heard; 

in  an  ordinary  foreclosure  case,  a  man  and  it  is  upon  this  very  ground  that 

and  his  wife  being  parties,  the  court  the  parties  have  been  heard,  or  have 

of   chancery  should   decree  a  divorce  had  the  opportunity  of  a  hearing,  that 

between   them,   it   would   require   no  the  law  gives  so  conclusive  an  effect  to 

argument  to  convince  every  one  that  to  matters  adjudicated." 

8uch  decree,  so  far  as  it  attempted  to  >■  Reynolds  v.  Stockton,  43  N.  J.  Eq. 

affect  the  matrimonial   relation,  was  211;  3  Am.  St.  Rep.  305. 

void;  and  yet  the  only  infirmity  in  such  ^  Seamster  r.  Blackstock,  83  Va.  232; 

a  decree  would  be  found,  upon  analysis,  5  Am.  St.  Rep.  262.     See  also  Anthony 

to  arise  from  the  circum-stance  that  the  v.  Kasey,  S3  Va.  33S;  5  Am.  St.  Rep. 

pomt  decided  was  not  within  the  sub-  277;  Wade  v.  Hancock,  76  Va.  620. 

stance  of   the  pending  litigation.     In  ^  Fithian  v.  Monks,  43  Mo.  502. 


199  VOID    JUDGMENTS.  §  121 

not  included  in  the  action  or  proceeding,  and  granted 
relief  not  germane  to  that  there  sought.  A  more  difficult 
question  arises  when,  in  an  action  to  recover  a  sum  of 
money,  or  the  possession  of  real  or  personal  property,  the 
court  gives  judgment  for  a  sum  in  excess  of  that  prayed 
for  in  the  complaint  or  shown  to  be  owing  by  its  allega- 
tions, or  for  the  possession  of  property  different  from  or 
in  excess  of  that  described  in  the  complaint.  As  to  such 
excess,  there  has  been  no  pleading  or  process  seeking  to 
recover  it  or  notifying  the  defendant  that  it  was  claimed 
of  him.  Nevertheless,  it  has  been  assumed,  rather  than 
decided,  that  a  judgment  larger  than  the  complaint  justi- 
fied, or  for  more  than  specified  in  the  writ,  cannot  be 
avoided  collaterally.' 

§  121.  Loss  of  Jurisdiction.  —  A  tribunal  having  un- 
doubted jurisdiction  of  a  cause  at  a  certain  stage  may 
lose  such  jurisdiction  at  some  subsequent  stage  of  the  pro- 
ceedings. This  frequently  happens  when  a  judgment  has 
been  pronounced  in  the  appellate  court  upon  appeal.  The 
judgment  of  the  superior  court  in  this  case  cannot  be 
varied  in  the  original  tribunal,^  nor  examined  for  any 
other  purpose  than  to  carry  it  into  effect,  nor  reviewed  for 
error  apparent,  nor  intermeddled  with,  further  than  to 
settle  so  much  as  has  been  remanded.^  Neither  can  the 
lower  court  do  anything  to  prevent  the  immediate  execu- 
tion of  the  judgment  of  the  appellate  court.*  So  if  in  an 
action  pending  in  a  state  court  the  proper  petition  is  filed 
and  proceedings  taken  to  require  its  removal  to  the 
national  courts,  the  jurisdiction  of  the  state  court  is 
divested,  and  its  subsequent  action,  should  it  take  any,  is 

'  Gillit    V.    Truax,    27     Minn.    528;  7  Met.  415.     But  of  course  the  juris- 

Chaffee  v.  Hooper,  54  Vt.  513.  diction  of   the  trial  court   cannot   be 

^  McKinney     v.     Jones,     57     Wis.  suspended  or  destroyed  by  an  attemp- 

301  ted  but  invalid  appeal:  Brady  v.  Burke, 

3  Ex  parte  Sibbald  v.  U.  S.,  12  Pet.  90  Cal.  1. 

488;    M<  Clanahan's  Heirs  v.   Hender-  *  MarysviUe   v.    Buchanan,    3    Cal. 

son's,  1  T.  B.  Mon.  261;  McArthur  v.  212;   McMillan  v.   Richards,    12  CaJ. 

Dane,  61  Ala.  539;  Boyuton  v.  Foster,  468. 


121 


VOID    JUDGMENTS. 


200 


coram  non  judice.''  If  the  statute  requires  regular  terms  to 
be  held  for  the  trial  of  causes,  the  court  in  the  intervals 
between  those  terms  is,  for  the  purpose  of  conducting 
trials,  in  the  same  condition  as  though  its  authority  over 
the  case  were  entirely  withdrawn.  It  is  no  longer  a  court. 
Judicial  powers  cannot  be  conferred  upon  it  by  consent  of 
the  parties,  and  any  judgment  rendered  upon  a  trial  had 
in  pursuance  of  such  consent  is  void,^  and  is  so  wanting 
in  even  the  color  of  judicial  authority  that  it  will  not  be 
reversed  upon  appeal.^     If  the  same  district  is  composed 


'  Steamship  Co,  v.  Tugman,  106 
U,  S.  118;  Railroad  Co.  v.  Koontz,  104 
U.  S.  14.    Contra,  Johnson  v.  Brewers' 

F.  I.  Co.,  51  Wis.  570. 

2  State  Nat.  Bank  v.  Neel,  53  Ark. 
110;  22  Am.  St.  Rep.  185;  Garlick 
V.  Dunn,  42  Ala.  404;  Kimports  v. 
Rawson,  29  W.  Va.  487;  Brumley 
V.  State,  20  Ark.  77;  Gahisha  v. 
Butterfield,  2  Scam.  227;  Ex  parte 
Osborn,  24  Ark.  479;  Hernandez  v. 
James,  23  La.  Ann.  483;  Dodge  v. 
Coffin,  15  Kan.  277;  Dixon  v.  Judge 
Fifth  Dist.,  26  La.  Ann.  119;  Earls  v. 
Earls,  27  Kan.  538;  Filley  v.  Cody,  4 
Col.  109;  Francis  v.  Wells,  4  Col.  274; 
Bruce  v.  Doolittle,  81  111.  103;  Laughin 
V.  Peckham,  66  Iowa,  121;  Marshall  v. 
Ravisies,  22  Fla.  583;  Balm  v.  Nunn, 
63  Iowa,  641;  King  v.  Green,  2  Stew. 
133;  19  Am.  Dec.  46;  Davis  v.  Fish,  1 

G.  Greene,  406;  48  Am.  Dec.  387. 

2  Wricks  V.  Ludwig,  9  Cal.  175;  Nor- 
wood V.  Kenfield,  34  Cal.  333;  Doss  v. 
Waggoner,  3  Tex.  515;  Leclair  v.  Glo- 
benski,  4  L.  C.  Rep.  139.  In  the  ab- 
sence of  any  statute  providing  to  the 
contrary,  the  term  is  lost  unless  the 
judge  appear  at  the  appointed  time 
and  open  court,  and  all  subsequent 
proceedings  are  void:  People  v,  San- 
chez, 24  Cal.  17;  People  v.  Bradwell, 
2  Cow.  445.  The  presence  of  the 
judge  is  also  indispensable  to  the  con- 
tinuation of  a  term  properly  opened. 
Thus  in  a  case  in  Illinois,  the  judge, 
having  held  the  term  until  a  certain 
day,  adjourned  it  till  the  next  day. 
He  then  left,  authorizing,  so  far  as  he 
could,  the  clerk  and  sheriff  to  open 
and  adjourn  court,  from  day  to  day, 
until  another  judge  arrived.  But 
when  this  action  was  called  in  ques- 
tion, the  supreme  court  of  the  state 


held  that  "the  judge  had  no  power 
to  authorize  the  ministerial  officers  of 
the  court  to  exercise  judicial  powers, 
even  in  opening  and  adjourning  the 
court,"  and  that,  as  a  consequence, 
the  term  expired  on  the  first  day  of 
the  judge's  absence:  Wight  v.  Wall- 
baum,  39  111.  554.  If  special  terms 
are  authorized  to  be  held  after  the 
giving  of  certain  notice,  a  trial  had 
and  judgment  entered  at  such  a  term, 
but  in  the  absence  of  the  required  no- 
tice, is  certainly  so  irregular  as  to  be 
set  aside  on  appeal,  and  is  probably 
void:  Oram  v.  Riley,  16  Cal.  186.  In 
the  cases  cited,  declaring  proceedings 
void  because  ti-ansacted  at  a  time  or 
place  where  the  court  was  not  author- 
ized to  transact  business,  the  facts 
rendering  the  action  coram  non  judice 
seem  to  have  appeared  on  the  record 
or  to  have  been  admitted  by  the  par- 
ties. But  a  question  of  some  difficulty 
may  arise  where  the  record  does  not 
show  whether  the  judgment  was  en- 
tered in  term  or  not.  The  general 
presumptions  indulged  in  favor  of  the 
proceedings  of  courts  of  general  juris- 
diction ought,  so  far  as  they  are  con- 
cerned, to  make  a  prima  facie  case  in 
favor  of  those  proceedings  in  all  cases, 
and  to  shield  them  from  all  collateral 
attacks  in  those  states  where,  as  in 
California,  jurisdictional  presumptions 
seem  to  be  sacred.  In  Tennessee  the 
objection  was  made  on  appeal  that 
while  the  court  appeared  to  have 
been  opened  at  the  proper  place  at 
the  first  day  of  the  term,  it  was  no- 
where shown  where  its  subsequent 
sessions  were  held.  But  the  objec- 
tion was  overruled,  because  it  was 
presumed  by  law  that  the  court  Avas 
held  where  it  first  met,  until  the  cou- 


201 


VOID   JUDGMENTS. 


§121 


of  different  counties,  a  trial  in  one  of  the  counties  on  the 
commencement  day  of  a  term  in  another  county,  though 
sanctioned  by  the  written  stipulation  of  both  parties,  is 
coram  non  judice}  A  judge  in  one  district  may  preside  in 
another  district  in  place  of  the  judge  of  the  latter  district. 


trary  was  shown:  Smith  v.  State,  9 
Humph.  10.  In  regard  to  a  case 
where  the  records  of  the  court  failed 
to  disclose  what  adjournments  were 
made  after  opening  the  term,  the  su- 
preme court  of  North  Carolina  said: 
"The  term  of  a  court  is,  in  legal  con- 
templation, as  one  day;  and  although 
it  may  be  open  many  days,  all  its 
acts  refer  to  its  commencement,  with 
the  particular  exceptions  in  which  the 
law  may  direct  certain  acts  to  be  done 
on  certain  other  days.  It  is  ^seldom 
necessary  that  the  day  of  any  proceed- 
ing should  appear  in  making  up  the 
record,  distinct  from  that  of  the  be- 
ginning of  each  term,  although  a  min- 
ute may  be  kept  of  each  day's  doings. 
Nor  is  it  necessary  that  there  should 
be  adjournments  from  day  to  day,  after 
the  term  is  once  opened  by  the  judge; 
nor,  if  there  should  be,  that  they 
should  be  recorded,  in  order  to  pre- 
serve the  authority  of  the  court  to 
perform  its  functions.  The  court  may 
in  fact  not  adjourn  during  the  whole 
term,  but  be  always  open;  though,  for 
the  convenience  of  suitors,  an  hour  of 
a  particular  day,  or  of  the  next  day, 
may  be  given  them  for  their  attend- 
ance. If  the  record  state  the  time 
of  doing  an  act,  as  the  statement  is 
unnecessary,  so  it  is  harmless  sur- 
plusage, unless  the  day  be  beyond  the 
period  to  which  the  term  legally  ex- 
tends": State  V.  Martin,  2  Ired.  122. 
In  New  York  it  is  said  that  a  court 
will  be  presumed  to  have  continued 
open  until  its  adjournment  is  shown: 
People  V.  Central  City  Bank,  53  Barb. 
412.  Language  employed  by  Chief 
Justice  Wallace  of  California  in  the 
matter  of  the  application  of  Bennett, 
44  Cal.  84,  on  hahens  corpm,  goes  far 
toward  asserting  that  a  judgment  en- 
tered in  vacation,  without  either  trial, 
argument,  or  submission,  is  valid.  He 
said:  "The  principal  objection  made 
for  the  petitioner,  as  we  uodorstand 
it,  is,  that  the  cause  here  was  tried  in 
chambers,  and  not  in  open  court;  and 
it  is  said  that  there  is  no  authority  to 


try  a  cause  except  in  open  court.    Bat 

even  if  this  be  so,  we  do  not  see  that 
it  would  follow  that  a  judgment  ren- 
dered in  a  cause  which  had  been  tried 
at  chambers  would,  for  that  reason, 
necessarily  be  void  in  the  absolute 
sense.  The  district  court  unques- 
tionably had  jurisdiction  of  the  sub- 
ject-matter and  of  the  parties  litigant. 
Had  the  court  itself  rendered  the  judg- 
ment in  question  in  open  session  at  a 
regular  term,  without  trial,  without 
proof,  and  even  without  submission 
of  the  cause  for  decision,  such  judg- 
ment, however  erroneous,  would  not 
be  held  void  upon  a  mere  collateral 
attack.  To  maintain  that  it  would, 
would  be  to  ignore  the  obvious  dis- 
tinction between  a  total  want  of  au- 
thority upon  the  one  hand,  and  the 
erroneous  exercise  of  the  conceded  au- 
thority upon  the  other."  And  speak- 
ing of  the  power  to  enter  judgment  in 
vacation,  the  judge,  in  the  same  opin- 
ion, says:  "It  is  a  power,  too,  which 
is  no  more  dependent  upon  or  affected 
by  the  fact  of  trial  had,  or  trial  not 
had,  than  if  the  judgment  had  been 
entered  in  term  time  by  the  court. 
The  hearing  of  proofs,  the  argument 
of  counsel, — in  other  words,  the  trial 
had, — or  the  absence  of  any  or  all 
these,  neither  confer  jurisdiction  in 
the  first  instance,  nor  take  it  away 
after  it  has  once  fully  attached." 

1  Bates  V.  Gage,  40  Cal.  183;  Gregg 
V.  Cooke,  Peck,  82.  But  in  Iowa,  by 
statute,  a  trial  commenced  with  a  bona 
fide  expectation  of  being  finished  be- 
fore the  close  of  the  term  may  be 
prosecuted  until  its  close,  though  it 
reaches  into  the  succeeding  term :  State 
V.  Knight,  19  Iowa,  94.  In  some  of 
the  states,  judgment  may,  by  consent, 
be  signed  in  vacation,  and  ordered 
entered  as  of  ensuing  term:  Hervey  v. 
Edmunds,  68  N.  C.  243;  or  tried  in 
vacation  and  entered  in  term  time: 
Roy  V.  Horsley,  6  Or.  382;  25  Am. 
Rej).  537.  See  also  Morrison  v.  Citi- 
zens' Bunk,  27  La.  Ann.  401. 


§  121  VOID    JUDGMENTS.  202 

But  this  does  not  authorize  two  judges  to  hold  separate 
courts  in  the  same  district  at  the  same  time.  Therefore 
an  order  made  by  a  judge  presiding  out  of  his  district,  at 
a  time  when  the  judge  of  the  district  where  the  order  is 
made  is  also  holding  court  therein,  is  void;  and  no  one 
can  be  punished  for  contempt  of  court  in  disobeying  such 
order.^  In  many  of  the  states  a  judgment  by  virtue  of 
statute  authority  may  be  entered  in  vacation.^  If  in  a 
cause  the  court  orders  that  "  upon  filing  of  proofs  and 
testimony  as  taken  by  the  court  commissioner  the  case 
be  submitted  to  the  court  and  decided  at  chambers,  and 
the  decision  and  judgment  be  entered  as  of  this  term  of 
the  court,"  and  the  court  thereafter  considers  such  testi- 
mony after  the  adjournment  of  the  term,  and  enters  its 
judgment  in  vacation,  such  judgment  is  not  void.  The 
order  amounted  to  a  submission  in  praesenti.  Such  sub- 
mission having  been  made  in  term  time,  the  court  w\as 
authorized  to  enter  judgment  thereon  in  vacation.^  While 
the  general  statement  is  sometimes  made  that  a  judgment, 
to  be  valid,  must  be  rendered  at  the  time  and  place  author- 
ized by  law,*  we  have  not  been  able  to  discover  any  de- 
cision, in  which  the  question  was  involved,  holding  that 
a  judgment  rendered  by  a  court  sitting  at  a  place  other 
than  that  designated  by  law  is  void.  On  the  contrary,  so 
far  as  the  question  has  been  judicially  considered,  judg- 
ments have  been  protected  from  collateral  assault  on  that 
ground,  and  it  may  fairly  be  inferred  from  the  decisions 
made  that  a  court  may,  when  necessary,  hold  its  session 
and  pronounce  judgment  at  places  other  than  those  ap- 
pointed by  law\^     In  Wisconsin  "  the  failure  of  a  justice 

>  People  V.  O'Neil,  47  Cal.  109.  ing  a  jiidgment  is  not  judicial,  it  may 

»  Phelan  v.  Giiuelnn,  5  Col.  14.  ordinarily  be  performed  in  vacation  as 

*  Ex   parte    Bennett,     44    Cal.    85.  well  as  in  term  time:  Iliff  v.  Arnott, 

Statute  authorizing  cases  to  be  taken  31  Kan.  672;  Sieber  v.  Frink,  7  Col. 

under   advisement   does   not  warrant  148;    Earls    v.    Earls,    27    Kan.    538; 

their    entry   in   vacation:    Wilson   v.  Manitowoc   County    v.    Sullivan,    51 

Rodewold,   61   Miss.   228;  and  it  has  Wis.  115. 

been  held  that  a  judgment  entered  in  *  State  v.  Roberta,  8  Nev.  239;  Dal- 

vacation,  withoutthejudgeseeingorap-  ton  v.  Libbey,  9  Nev.    192;  Cooper  v. 

proving  it,  is  void,  though  pronounced  American  Cent.  Ins.  Co.,  3  Col.  318. 

during  the  term:  Mitchell  w.  St.  John,  ^  Le  Grange  v.  Ward,  11   Oliio,  257; 

98  Ind.  598.     But  as  the  duty  of  enter-  Herndon  v.  Hawkins,  65  Mo.  265. 


203  VOID    JUDGMENTS.  §  121 

of  the  peace  to  enter  in  his  docket  the  place  as  well  as  the 
time  to  which  a  cause  pending  before  him  is  adjourned 
divests  his  jurisdiction  and  renders  all  subsequent  pro- 
ceedings void."  ^ 

When  an  action  is  finally  determined  by  the  entry  of 
final  judgment  and  the  lapse  of  the  term,  the  court,  for 
most  purposes,  has  exhausted  its  jurisdiction  over  it,  and 
is  in  the  same  condition  with  respect  to  both  the  subject- 
matter  and  the  parties  as  if  no  action  had  been  begun. 
Therefore  if  after  final  judgment,  or  after  an  order  setting 
aside  a  homestead  or  confirming  a  judicial  sale,  the  court 
proceeds  to  enter  another  judgment,  or  to  disturb  the 
order  setting  aside  the  homestead  or  confirming  the  sale, 
its  action  is  void,  unless  its  jurisdiction  has  been  con- 
tinued by  some  motion  or  proceeding  appropriate  for 
that  purpose.^  It  is  now  settled  that  a  court  may,  in 
eflfect,  abdicate  its  jurisdiction  over  the  parties  by  refusing 
to  hear  them  after  they  have  been  regularly  brought  into 
court,  as  where  it  orders  their  answer  to  be  stricken  out 
because  they  refused  to  take  an  oath  of  loyalty,  and  judg- 
ment thereafter  rendered  by  it  is  void.'  A  very  remark- 
able decision  upon  the  question  of  loss  of  jurisdiction 
during  the  pendency  of  an  action  is  one  that  affirms  that 
the  continued  existence  of  plaintiff's  right  to  recovery  is 
essential  to  the  continuance  of  the  jurisdiction  of  the 
court  over  the  subject-matter,  and  therefore  if  he,  after 
bringing  suit,  accepts  payment  of  the  demand  sued  upon, 
but  subsequently  takes  judgment  therefor,  it  is  void,  be- 
cause the  subject-matter  of  the  action  has  been  extin- 
guished by  its  payment."  But  this  decision  is  based  upon 
a  mistaken  conception  of  the  subject-matter  of  the  action. 
It  is  not  the  existence  of  a  cause  of  action  which  constitutes 
the  subject-matter,  but  the  allegation  of  such  existence. 
The  allegation  may  be  found  on  judicial  investigation  to 

1  Witt  V   Henge,  58  Wis.  244.  Windsor     v.     McVeigh,     93     U.     S. 

»  State  «.  Railroad,  16  Fla.  708;  Fob-  274 

sett  V.  McMahan,  74  Tex.  546.  *  Two  Rivers  Mfj^.  Co.  v.  Beyer,  74 

s  Heury    v.    Carson,   96    lad.    412;  Wis.  210;  17  Am.  bt.  ilcp.  131. 


§   121  VOID    JUDGMENTS.   .  204 

be  false;  but  this  is  not  equivalent  to  a  finding  that  there 
is  no  subject-matter  of  the  action,  and,  instead  of  demon- 
strating that  the  court  cannot  proceed  further,  makes  it 
incumbent  upon  it  to  pronounce  final  judgment.  The 
discharge  of  a  cause  of  action  by  payment  after  the  com- 
mencement of  a  suit  can  no  more  divest  the  jurisdiction 
of  the  court  than  the  payment  of  the  same  cause  of  action 
before  suit  was  brought  could  have  made  it  impossible  for 
the  court  to  entertain  the  action  and  to  require  the  de- 
fendant to  appear  in  response  to  its  process. 

The  complete  exercise  of  jurisdiction  over  a  subject- 
matter  may  exhaust  the  jurisdiction,  not  only  of  the  court 
so  exercising  it,  but  of  another  court  possessing  concur- 
rent jurisdiction  over  the  same  subject-matter.  Thus  if 
in  the  progress  of  the  administration  of  an  estate  in  the 
probate  court  of  a  county  certain  lands  of  a  decedent  are 
authorized  to  be  and  are  sold,  the  sale  confirmed,  and  a 
conveyance  made  to  the  purchaser,  the  jurisdiction  of  the 
court  over  such  lands  is  clearly  exhausted.  They  become 
the  property  of  the  purchaser,  and  cannot  again  be  sub- 
ject to  administration  during  the  continuance  of  his  life 
and  ownership.  If  the  district  court  of  the  county  also 
possesses  probate  jurisdiction,  and  subsequently  assumes 
authority  over  the  estate  of  the  same  decedent,  and  orders 
the  same  lands  to  be  sold,  and  they  are  in  fact  sold  to  a 
purchaser  having  no  knowledge  of  the  former  proceed- 
ings, such  sale  is  void,  because  the  former  sale  completely 
exhausted  all  probate  jurisdiction  over  the  lands,  and  the 
latter  sale  was  a  mere  unauthorized  assumption  of  author- 
ity over  the  property  of  a  living  person.^  If  a  probate 
court  appoints  an  executor  or  administrator,  it  cannot, 
while  he  continues  in  office,  appoint  another.  Its  juris- 
diction is  exhausted.  Its  further  grant  of  letters  is  void.^ 
Neither  can  it  appoint  another  administrator  after  an 
estate  has  been  fully  administered  upon  and  distributed 

'  Lindsay  v.  JaEFray,  55  Tex.  62G;  ^  Griffith  v.  Frazier,  8  Cranch,  9; 
Smith  V.  Woolfolk,  115  U.  S.  143.  Flinu  v.  Chase,  4  Denio,  90. 


205  VOID    JUDGMENTS.  §  122 

to  the  heirs.'  Where  a  statute  forbade  the  "administration 
upon  the  estates  of  persons  who  had  been  dead  for  more 
than  twenty  years,  a  grant  of  administration  in  defiance 
of  the  statute  was  adjudged  void.^  If  notice  is  given  that 
a  petition  for  the  sale  of  lands  will  be  presented  at  a  time 
specified,  and  it  is  not  then  presented,  the  persons  inter- 
ested in  opposing  it  may  regard  it  as  abandoned.  The 
court  has  no  authority  to  hear  it  without  giving  a  new 
notice.'  But  if  the  failure  to  present  the  application  arises 
from  the  fact  that  the  term  of  court  is  not  opened,  no  pre- 
sumption of  abandonment  can  be  indulged.  The  petition 
may,  it  has  been  held,  be  presented  at  the  next  term,  with- 
out any  new  notice.* 

§  122.     Courts  of  Record  and  Courts  not  of  Record. — 

If  in  the  examination  of  a  judgment  it  is  satisfactorily 
ascertained  that  the  court  whose  sentence  it  is  had  juris- 
diction over  the  subject-matter  of  the  action,  and  was,  at 
the  rendition  of  its  judgment,  authorized  to  act  as  a  court^ 
the  next  inquiry  will  be,  whether  the  court  was  empow- 
ered to  determine  the  rights  of  the  parties  over  whom  it 
assumed  to  act.  The  first  question  to  be  considered  is, 
wdiether  the  judgment  was  rendered  by  a  court  of  general 
or  of  special  jurisdiction.  There  is  no  well-defined  test 
by  which  to  determine  in  all  cases  whether  a  court  be- 
longs to  the  one  class  or  to  the  other.  But  all  courts  in- 
vested with  a  general  common-law  jurisdiction,  in  law  or 
in  equity,  are,  when  exercising  such  jurisdiction,  prop- 
erly included  in  the  first  class;  while  all  such  courts  as 
are  erected  upon  such  principles  that  their  judgments 
must  be  disregarded  until  proceedings  conferring  juris- 
diction are  shown  belong  to  the  second  class.®  These 
classes  are  frequently  designated  as  courts  of  record  and 

'  Fisk  V.  Norvel,  9  Tex.  13;  58  Am.  Am,   Dec.   243.      See   also  fiost,  sec. 

Dec.  128.  52G. 

«  Wales  V.  Willard,  2  Mass.  120.  *  Hanks  v.  Neal,  44  Miss.  224. 

«  Turney  v.  Turney,  24  111.  625;  Gib-  '  Harvey   v.    Tyler,    2    Wall.    328; 

son  V   Roll   30  111.  172;  S3  Am.  Dec.  Kempe's  Lessee  r.  Kennedy,  5  Cranch, 

181;  Morris  t>.  Hogle,  37  HI.  150;  87  185. 


§  122  VOID    JUDGMENTS.  206 

courts  not  of  record.  Courts  of  record  having  authority 
over  the  subject-matter  are  competent  to  decide  upon 
their  own  jurisdiction,  and  to  exercise  it  to  final  judgment, 
without  setting  forth  upon  their  records  the  facts  and 
evidence  upon  which  their  decision  is  based.  Their  rec- 
ords are  absolute  verities,  not  to  be  impugned  by  averment 
or  proof  to  the  contrary.^  A  court  may  possess  powers  of 
a  limited  and  subordinate  character,  and  yet  not  be  a 
court  of  special  or  limited  jurisdiction  in  the  sense  that 
it  ought  to  certify  everything  precisely.^ 

"The  use  of  the  words  'superior'  and  'inferior,'  or  'lim- 
ited' and  'general,'  however  apt  they  may  have  once  been, 
are  less  so  at  this  time  and  place,  and  their  duties,  in  view 
of  our  system  and  mode  of  procedure,  would  be  better 
performed  by  the  terms 'courts  of  record'  and  'courts 
and  tribunals  not  of  record.'"^  "A  court  of  record  is 
that  where  the  acts  and  judicial  proceedings  are  enrolled 
on  parchment  for  a  perpetual  memorial  and  testimony, 
which  rolls  are  called  the  records  of  the  court,  and  are  of 
such  high  and  supereminent  authority  that  their  truth  is 
not  to  be  called  in  question."*  The  circuit,  district/^  and 
territorial  courts  of  the  United  States  are  courts  of  record, 
and  so  are  the  orphans'  courts  in  Pennsylvania  and  Ala- 
bama,® and  the  probate  courts  in  Arkansas,  Minnesota,' 
Missouri,*  California,^  Ohio,^^  Vermont,'^  and  South  Caro- 
lina.'^    Prior  to  1858  the  probate  court  in  California  was 

'  Grignon's  Lessee  v.  Astor,  2  How.         ^  Johnsoa  v.  Beazley,  65  Mo.  250; 

319;Rexv.  Carlile,  2Barii.  &Adol.  367;  27  Am.  Rep.  276;  Camden  tj.  Plain. 91 

Molins  V.  Werly,   1  Lev.  76;   Cole  t;.  Mo.   117;   Rowden  v.  Brown,  9.    Mo. 

Green,  1  Lev.  309;  Bowsse  v.  Canning.  429. 
ton   Cro.  Jac.  244.  ®  Luco  v.  Commercial  Bank,  70  Cal. 

«  Peacock  v.  Bill,  1  Saund.  74.  339;  McCauley  v.  Harvey,  49  Cal.  497. 

*  Halm  V.  Kelly,  34  Cal.  391;  94  Am.  In  this  state  the  jurisdiction  formerly 
Dec.  742.  exercised  by  the  probate  court  is  now 

*  3  Steph.  Com.  583;  3  Bla.  Com.  24.  vested    in    the   superior   court.     The 

*  Page  V.  United  States,  11  Wall,  alcalde's  court,  which  existed  in  this 
268;  Reed  v.  Vaughan,  15  Mo.  137;  55  state  while  it  belonged  to  Mexico,  was 
Am.  Dec.  133.  one  of   general   jurisdiction:   Braly  v. 

6  Musselman's   Appeal.    65  Pa.    St.  Reese,  51  Cal.  447. 

485;    Lex's   Appealj"  97   Pa.   St.    289;  i"  Shroyer  v.  Richmond,  16  Ohio  St. 

Teach  v.  Rice,  131  U.  S.  293.  455. 

'  Dayton  v.  Mintzer,  22  Minn.  393;  "  Doolittle  v.  Helton,  28  Vt.  819;  67 

Osborne  v.  Graham,  30  Ark.  67;  Apel  Am.  Dec.  745. 

V.   Kelsey,   52  Ark.   341;  20  Am.  St.  '^  Turner  v.  Malone,  24  S.   C.  398; 

Rep.  183.  Angell  v.  Angell,  14  R.  L  541. 


207  VOID   JUDGMENTS.  §  123 

a  court  of  limited  jurisdiction,  and  its  proceedings  were 
required  to  show  the  facts  conferring  upon  the  court 
its  authority  to  act.^  The  judgments  of  justices  of  the 
peace  are  favored  with  the  same  presumptions  as  though 
they  were  pronounced  in  courts  of  record,  in  the  states  of 
Pennsylvania,^  Connecticut/ Vermont/  Tennessee/  Missis- 
sippi,^ and  Texas.^ 

§  123.  Special  Powers.  —  The  jurisdiction  exercised  by 
courts  of  record  is,  in  many  cases,  dependent  upon  special 
statutes  conferring  an  authority  in  derogation  of  the  com- 
mon law,  and  specifying  the  manner  in  which  such  au- 
thority shall  be  employed.  The  decided  preponderance 
of  adjudged  cases  upon  the  subject  establishes  the  rule 
that  judgments  arising  from  the  exercise  of  this  jurisdic- 
tion are  to  be  regarded  in  no  other  light,  and  supported 
by  no  other  presumptions,  than  judgments  pronounced 
in  courts  not  of  record.  The  particular  state  of  facts 
necessary  to  confer  jurisdiction  will  not  be  presumed; 
and  if  such  facts  do  not  appear,  the  judgment  will  be 
treated  as  void.^  The  supreme  court  of  the  United  States 
has  laid  down  the  rule  that  when  a  statute  prescribes  the 
manner  in  which  the  rights  conferred  by  it  are  to  be 
pursued,  and  the  powers  delegated  by  it  are  to  be  exer- 
cised in  a  special  and  summary  manner,  the  proceedings 

1  Grimes  v.   Norris,   6  Cal.    621;  65  6  Wheat.  119;  Striker  v.  Kelly,  7  Hill, 

Am.  Dec.  545;  Haynes  v.  Meeks,  10  24;  Deuning  v.  Corwin,  1 1  Wend.  647; 

Cal.  110;  70  Am.  Dec.  703.  Ludlow  v.  Johnson,  3  Ohio,   553;  17 

i'  Billings  V.  Russell,  [23  Pa.  St.  189;  Am.  Dec.  609;  Mitchell  v.  Runkle,  25 

62  Am.  Dec.  330;  Clark  w.  McComman,  Tex.  Supp.  132;  Adams  v.  Jeffries,  12 

7  Watts  &  S.  469.  Ohio.  253;  40  Am.  Dec.  477;  Cone  v. 

3  Fox  V.  Hoyt,  12  Conn.  491;  31  Am.  Cotton,  2   Blackf.    82;    Earthman   v. 

Dec.  760.  Jones,  2  Yerg.  493;  Barry  v.  Patter- 

nVright  V.  Hazen,  24  Vt.  143.  son,  3  Humph.  313;  Wight  v.  Warner, 

*  Turner    v.    Ireland,    11    Humph.  1  Doug.  (Mich.)  384;  Gunn  v.  Howell, 

447.  27  Ala.  663;  62  Am.  Dec.  785;  Chicago 

« Stevens  v.  Mangum,  27  Miss.  481.  &  N.  W.  R.  R.  Co.  v.  Gait,  23  N.  E. 

^Heck  V.  Martin,  75  Tex.  469;  16  Rep.  425  (111.);  Brown  v.  Wheelock,  75 

Am.  St.  Rep.  915;  Holmes  v.  Buckner,  Tex.  385;  Graham  v.  Reynolds,  45  Ala. 

67  Tex.  107;  Williams  v.  Ball,  52  Tex.  578;  Emlmry  v.  Conner,  3  N.  Y.  511; 

603;  36  Am.  Rep.  730.  53  Am.  Dec.  325;  Cooper  v.   Sunder- 

« Shivers  y.  Wilson,  5  Har.  &  J.  130;  land,  3   Iowa,  114;   66  Am.  Dec.  52; 

19  Am.  Dec.  497;  Foster  v.  Glazener,  Goodwin  v.  Sims,  86  Ala.  102;  11  Am. 

27  Ala.  391,  663;  Thatcher  v.  Powell,  St.  Rep.  21. 


§  123  VOID    JUDGMENTS.  208 

of  the  court  will  be  considered  as  of  the  same  character 
as  the  proceedings  of  courts  not  of  record;  but  when  the 
statute  confers  new  powers  and  rights,  to  be  brought  into 
action  by  the  usual  form  of  common-law  or  of  chancery 
practice,  the  proceedings  and  judgments  of  the  court  will 
have  all  the  characteristics  of  the  proceedings  and  judg- 
ments of  courts  of  record.* 

The  doctrine  that  the  judgments  of  courts  of  record  are 
of  any  less  force,  or  are  to  be  subjected  to  any  closer  scru- 
tiny, or  that  they  are  attended  with  any  less  liberal 
presumptions,  when  created  by  virtue  of  a  special  or 
statutory  authority,  than  when  rendered  in  the  exercise 
of  ordinary  jurisdiction,  has  been  repudiated  in  some 
of  the  states;^  and  the  reasons  sustaining  this  repudia- 
tion have  been  stated  with  such  clearness  and  force 
as  to  produce  the  conviction  that  the  doctrine  repudiated 
has  no  foundation  in  principle,  however  strongly  it  may 
be  sustained  by  precedent.  In  the  first  place,  it  is  shown 
that  the  discrimination  between  courts  of  record  and  courts 

'  Harvey  v.  Tyler,  2  Wall.  342.     If  cial   powers   by   special   statute,    and 

the  facts  necessary  to  confer  jurisdic-  such  special  powers  are  exevcis&d.  jiidi- 

tion  are  shown  to  exist,  a  judgment  daily,  that  is,  according  to  the  course 

cannot  be  collaterally  attacked,  though  of  the  common  law  and  proceedings 

rendered  by  a  court  in  the  exercise  of  in  chancery,  such  judgment  cannot  be 

a  special  statutory  authority:  Secombe  impeached  collaterally. 

V.  R.  R.  Co.,  23  Wall.   108;  McCahill  "3.  But  where  a  court  of   general 

V.  Equitable  Life  Ins.  Co.,  26  N.  J.  Eq.  jurisdiction  has  conferred  upon  it  spe- 

531.    The  question  whether  and  when  cial  and  summary  powers,  wholly  de- 

the   judt,'ments   of   courts   of   general  rived  from  statutes,  and  which  do  not 

jurisdiction  may  be  treated  as  of  no  belong  to  it  as  a  court  of  general  juris- 

greater  dignity  than  those  of  courts  of  diction,  and  when  such  powers  are  not 

special  and   limited   jurisdiction   was  exercised  according  to  the  course  of 

very   elaborately    considered    by   the  the   common    law,    its    action    being 

supreme  court  of  the  United  States  in  ministerial  only,  and  not  judicial,  in 

Galpin  v.  Page,  IS  Wall.  350.     From  such  case  its  decision  must  l3e  regarded 

a  full  review  of  the  recent  decisions,  and   treated   like   those   of   courts   of 

the  court  of  appeals  of  Virginia  deter-  limited  and  special  jurisdiction,  and 

mined  that  there  might  be  extracted  no  such   presumption   of   jurisdiction 

therefrom  "the  following  general  legal  will  attend  the  judgment  of  the  court, 

propositions  of  universal  application: —  But  in  such  cases  tlie  facts  essential  to 

"  1.  When  a  court  of  general  juris-  the  exercise  of  the* special  jurisdiction 

diction   acts  withiu   the   scope  of   its  must   appear  on  the  face  of  the  rec- 

general  powers,  its  judgments  will  be  ord":  Pulaski  Co.  v,  Stuart,  28  Gratt. 

presumed  to  be  in  accordance  with  its  879. 

jurisdiction,  and  cannot  be  collaterally  ^  Falkner   v.    Guild,    10   Wis.    572; 

impeached.  Hahn  v.  Kelly,  S4  Cal.  391 ;  94  Am.  Dec. 

"2.  So,  also,  when  a  court  of  general  742;  Newcomb's  Ex'rs  v.  Newcomb,  13 

jurisdiction  has  conferred  upon  it  spe-  Bush,  544;  26  Am.  Rep.  222. 


209  VOID    JUDGMENTS.  §  124 

not  of  record  "is  founded  upon  considerations  of  the  wis- 
est policy,  which  are  obvious  to  all.  Courts  of  record 
are  presided  over  by  men  of  experience  and  learned  in 
the  law,  assisted  by  counsel  also  of  experience  and  learn- 
ing, who,  in  the  discharge  of  their  duties  to  their  clients, 
necessarily  act  as  advisers  of  the  court.  Their  proceedings 
are  conducted  with  solemnity  and  deliberation,  and  in 
strict  conformity  with  established  modes,  with  which  long 
experience  has  made  the  court  and  bar  familiar,  and  above 
all,  they  are  taken  down  and  made  a  matter  of  record  at  or 
about  the  time  they  transpire.  Of  inferior  courts,  as  a 
general  rule,  none  of  these  things  can  be  affirmed."  In  the 
second  place,  it  is  shown  that  none  of  those  reasons  upon 
which  the  discrimination  between  different  courts  rests 
tends  to  justify  any  discrimination  between  different  pro- 
ceedings conducted  by  the  same  court;  that  whether  a 
court  proceeds  according  to  the  "course  of  the  common 
law,"  or  according  to  some  authority  conferred  and  some 
course  prescribed  by  a  statute,  it  is,  in  either  case,  pre- 
sided over  by  the  same  judge,  assisted  by  the  same  coun- 
sel and  officers,  and  conducted  with  the  same  wisdom, 
caution,  and  solemnity.  In  either  case  its  proceedings 
are  equally  matters  of  record,  and  equally  subject  to  fixed 
and  well-understood  laws.  And  finally,  it  is  suggested 
that,  as  no  reason  has  been  given  for  regarding  the  same 
tribunal  with  different  degrees  of  consideration,  accord- 
ing to  circumstances  which  seem  not  to  affect  its  claims 
to  crur  confidence,  therefore  all  its  adjudications,  though 
arising  out  of  the  exercise  of  lawful  jurisdiction  conferred 
at  different  times,  or  from  different  but  equally  competent 
sources,  should  be  subjected  to  similar  rules  and  indulged 
with  equal  presumptions.^ 

§  124.  Presumption  in  Favor  of  Jurisdiction.  —  If  it  is 
ascertained  that  the  judgment  or  decree  under  examina- 
tion was  rendered  by  a  court  of  record  in  the  exercise  of 

1  See  opinion  of  Sanderson,  J.,  in  Habn  v.  Kelly,  34  Cal.  391;  94  Am.  Dec. 

742. 

JUDG.  I. —14 


§  124  VOID    JUDGMENTS.  210 

its  ordinary  jurisdiction  over  the  subject-matter  in  litiga- 
tion, the  next  fact  to  be  determined  is,  whether  the  court 
had  jurisdiction  over  the  person  against  whom  the  judg- 
ment has  been  obtained.  The  preponderance  of  authori- 
ties shows  that  in  a  collateral  proceeding  this  fact  must 
be  determined  by  an  inspection  of  the  matters  contained 
in  what,  at  the  time  of  entering  the  judgment,  constituted 
the  record  or  judgment  roll.  Any  other  paper  which 
happens  to  be  on  file  in  the  case,  and  improperly  attached 
to  the  record,  must  be  disregarded.  The  record,  however, 
may  be  silent  upon  the  subject  of  jurisdiction.  It  may 
fail  to  show  whether  the  proceedings  taken  to  bring  the 
defendant  within  the  authority  of  the  court  were  sufficient 
or  insufficient;  or,  for  aught  that  appears  by  the  judgment 
roll,  no  attempt  may  have  been  made  to  perform  some 
act  essential  to  jurisdiction.  "Nothing  shall  be  intended 
to  be  out  of  the  jurisdiction  of  a  superior  court  but  that 
which  expressly  appears  to  be  so." '  Hence,  though  the 
existence  of  any  jurisdictional  fact  may  not  be  affirmed 
upon  the  record,  it  will  be  presumed  upon  a  collateral 
attack  that  the  court,  if  of  general  jurisdiction,  acted  cor- 
rectly and  with  due  authority,  and  its  judgment  will  be 
as  valid  as  though  every  fact  necessary  to  jurisdiction 
affirmatively  appeared.  The  decisions  to  this  effect  are 
very  numerous.^     If  a  statute  required  a  certain  affidavit 

'  Gosset  V.  Howard,   10   Q.  B.  453;  Skillinan  v.  Greeawood,  15  Minn.  102; 

Guilford  v.  Love,  49  Tex.  715;  Goar  v.  Arnold  v.  Nye,  23  Mich.  286;  Smith 

Maranda,  57  Ind.  339.  v.  Pomeroy,  2  Dill.  414;  Adams  v.  Jef- 

2  Withers  u.  Patterson,  27  Tex.  491;  fries,  12  Ohio,  253;  40  Am.  Dec.  477; 

86  Am.  Dec.  643;  Holmes  w.  Campbell,  Palmer  v.  Oakley,  2  Doug.  (Mich.)  433; 

12  Minn.  221;    Spaulding  v.  Baldwin,  47  Am.  Dec.  41;  Hering  v.  Chambers, 

31  Ind.  376;  Evans  v.  Ashby,  22  Ind.  103   Pa.   St.   172;    Coit   w.  Haven,  30 

15;  Butcher  v.  Bank  of  Brownsville,  2  Conn.  190;  79  Am.  Dec.  244;  Weaver 

Kan.  70;  83  Am.  Dec.  446;  Reynolds  v.  Brown,  87  Ala.  533;  Woodhouse  v. 

V.  Stansbury,  20   Ohio,  344;    55  Am.  Filbatis,  77  Va.  317;  Stahl  v.  Mitchell, 

Dec   459;  Bushw,  Lindsey,  24  Ga.  245;  41  Minn.  325;  Horan  ?;.Wahrenberger, 

71  Am.  Dec.   117;   Hahn  v.   Kelly,  34  9  Tex.  313;  58  Am.  Dec.  439;  McCor- 

Cal.  391;  94  Am.  Dec.  742;  Calkius  v.  mick  v.  Webster,  89  Ind.  105;  Reinig 

Packer,  21  Barb.  275;  Prince  ?;.  Griffin,  v.  Hecht,  58  Wis.  212;   Cummisky  v. 

16  Iowa,  552;  Grignon's  Lessee  v.  As-  Cummisky,   109   Pa.  St.   1;   Tunell  v. 

tor,  2   How.  319;   Cox   v.  Thomas,  9  Warren,  25  Minn.  9;  Exchange  Bank 

Gratt.   323;    Wells  v.  Waterhouse,   22  u  Ault,  102  Ind.  322;  Wilkins  w.  Tour- 

Me    131;  Ely  v.  Tallmau,  14  Wis.  28;  tellott,  42  Kan.  176;  Kenney  v.  Greer, 

Potter  V.  Mechanics'  Bank,  28   N.  Y.  13  111.  432;  54  Am.  Dec.  439. 
656;    Kelsey  v.  Wyley,  10  Ga.   371; 


211  VOID    JUDGMENTS.  §  124 

to  be  filed  or  a  certain  fact  to  be  found  prior  to  the  rendi- 
tion of  judgment,  it  will  be  presumed,  in  the  absence  of 
any  statement  or  showing  upon  the  subject,  that  such 
affidavit  was  filed  ^  or  such  fact  found.^  One  acting  in  a 
court  of  record  as  attorney  in  fact  for  a  party  will  be  pre- 
sumed to  have  satisfied  the  court  of  his  authority  to  act, 
and  the  proceedings  cannot  be  collaterally  attacked  be- 
cause the  proof  of  such  authority  does  not  appear  in  the 
record.^ 

A  case  decided  at  an  early  day  in  New  York  seemed 
to  be  in  opposition  to  the  current  of  authorities  on  the 
subject  of  the  presumptions  which  attend  the  proceed- 
ings of  courts  of  record  w^hen  called  in  question  col- 
laterally.* The  opinion  in  this  ca^e,  so  far  as  it  placed 
proceedings  of  "superior"  courts  upon  the  same  footing 
with  those  of  "inferior"  courts,  was  soon  after  overruled.* 
A  few  other  cases  are  reported  which  do  not  seem  to  be 
entirely  consistent  with  the  rule  upon  this  subject.®  But 
it  was  reserved  to  the  court  deciding  the  case  of  Sieen  v. 
Steen,  25  Miss.  513,  to  exhibit  an  extraordinary  miscon- 
ception of  the  law,  by  the  use  of  the  following  language: 
"It  is  also  a  fixed  rule  on  this  subject  that  the  record  of 
the  judgment  must  show  upon  its  face  that  the  court  did 
have  jurisdiction  of  the  person.  Unless  it  so  appears,  the 
judgment  is  a  nullity,  for  it  will  not  be  presumed  that 
the  court  had  jurisdiction  unless  the  record  shows  that 
fact."  The  courts  of  the  states  of  Kansas  and  Missouri 
seem  to  be  following  close  in  the  wake  of  those  of  the 
state  of  Mississippi.  In  a  case  in  the  first-named  state, 
the  plaintiff's  title  depended  upon  a  certain  judgment, 
sale,  and  sheriff's  deed.     In  attempting  to  prove  his  title, 

1  Dean  v.  Thatcher,  32  N.  J.  L,  470;  *  Foot  v.  Stevens,  17  Wend.  483. 
Newcomb's  Executor  v.  Newcomb,  13  *  Gwin  v.  McCarroU,  1  Sinedes  &  M. 
Bush,  544;  26  Am.  Rep.  222.  351;  Clineu  Gibson,  23  Iiul.  II;  Glide- 

2  Thornton  v.  Baker,  15  R.  I.  553;  well  v.  Spaugh,  26  Ind.  319.  liut  the 
2  Am.  St.  Rep.  925.  recent  Indiana  decisions  indulge  pre- 

5  Pillsbury  w.  Dugan,  9   Ohio,   117;  sumptions  in  support  of  the  judgments 

34  Am.  Dec.  427.  of  courts  of  record  in  extrt;mc  cases: 

*  Dennine    v.    Corwin,    11     Weud.  O'Brien  v.  St:ite,  1'_'5  Ind.  38;  Auder- 

648.  sou  V.  VVilsou,  100  Ind.  402. 


§   125  VOID    JUDGMENTS.  212 

he  showed  first  that  the  files  of  the  case  were  all  burned, 
and  next  produced  a  journal  entry  of  the  judgment.  This 
entry  contained  the  statement  that  the  defendant  had 
been  duly  served  by  publication  in  a  newspaper  which  it 
specified.  Upon  these  facts  the  court  determined  that 
"  until  it  appears,  not  merely  that  the  papers  are  gone, 
but  also  that  there  is  no  secondary  proof  of  their  contents, 
there  is  no  presumption,  even  in  favor  of  a  court  of  gen- 
eral jurisdiction,  from  the  existence  of  one  part  of  a  record, 
that  the  remainder  would,  if  produced,  contain  the  facts 
necessary  to  give  the  court  jurisdiction."^  In  a  very 
recent  decision  in  the  state  of  Missouri,  we  find  the  gen- 
eral rule  announced  that  "  if  the  w^hole  record,  taken  to- 
gether, does  not  show  that  the  court  had  jurisdiction  over 
the  defendant,  then  the  judgment  would  be  a  nullity."^ 

§  125.  No  Presumption  against  the  Record.  —  Pre- 
sumptions in  favor  of  proceedings  of  courts  of  record  are 
indulged  only  in  relation  to  those  jurisdictional  matters 
concerning  which  the  judgment  roll  is  silent.  But  no 
presumptions  in  support  of  the  judgment  are  to  be  allowed 
in  opposition  to  any  statement  contained  in  the  record- 
If  an  act  is  stated  in  the  roll  to  have  been  done  in  a 
specified  manner,  no  presumption  arises  that,  at  some 
future  time,  the  act  was  done  in  a  better  or  more  efiicient 
manner.  If  it  appears  that  the  process  was  served  in  a 
particular  mode,  no  other  and  difi'erent  service  can  be 
presumed.  To  indulge  such  a  presumption  would  be 
to  contradict  the  record,  which  imports  absolute  verity. 
When,  therefore,  the  record  shows  that  certain  steps  were 
taken  to  procure  jurisdiction,  and  the  law  does  not  con- 
sider those  steps  sufiicient,  the  judgment  will  be  regarded 
as  void,  for  want  of  jurisdiction  over  the  defendant.^ 
And  where  the  record  shows  that  the  court  was  not  in 

'  Hargis  v.  Morse,  7  Kan.  417.  tine,  39  Minn.  336;  12  Am.  St.   Rep. 

«  Howard  v.  Thornton,  50  Mo.  291.  657;    Clark  v.   Thompson,   47  111.    25; 

s  Barber  v.  Morris,  37  Minn.  194;  5  95  Am.   Dec.  457;  Hahn  v.  Kelly,  34 

Am.  St.  Rep.   836;  Godfrey  v.  Valeu-  Cal.  391;  94  Am.  Dec.  742. 


213  VOID    JUDGMENTS.  '  §  126 

session  on  a  particular  day,  a  proceeding  cannot  be  sup- 
ported, at  least  in  Missouri,  by  parol  evidence  that  the 
court  was  in  fact  in  session  and  transacting  business  on 
the  day  designated,  "  but  that  by  mistake  in  writing  up 
the  records  they  failed  to  show  the  fact."  ^ 

§  126.  Defects  in  Process  or  the  Service  thereof.  — 
There  is  a  difference  between  a  want  of  jurisdiction  and 
a  defect  in  obtaining  jurisdiction.  At  common  law  the 
defendant  was  brought  within  the  power  of  the  court  by 
service  of  the  brevia,  or  original  writ.  In  this  country 
the  same  object  is  accomplished  by  service  of  summons, 
either  actual  or  constructive,  or  of  some  other  process 
issued  in  the  suit;  or  by  the  voluntary  appearance  of  the 
defendant  in  person  or  by  his  attorney.  From  the  mo- 
ment of  the  service  of  j)rocess,  the  court  has  such  control 
over  the  litigants  that  all  its  subsequent  proceedings, 
however  erroneous,  are  not  void.  If  there  is  any  irregH 
ularity  in  the  process,  or  in  the  manner  of  its  service,  the 
defendant  must  take  advantage  of  such  irregularity  by 
some  motion  or  proceeding  in  the  court  where  the  action 
is  pending.  The  fact  that  defendant  is  not  given  all  the 
time  allowed  him  by  law  to  plead,^  or  that  he  was  served 
by  some  person  incompetent  to  make  a  valid  service,  or 
any  other  fact  connected  with  the  service  of  process,  on 
account  of  which  a  judgment  by  default  would  be  reversed 
upon  appeal,  will  not  ordinarily  make  the  judgment  vul- 
nerable to  a  collateral  attack.'     In  case  of  an  attempted 

'  Ange  V.  Corby,  70  Mo.  257.  v.  Fullerton.  4  Minn.  473;  Cole  v.  But- 
^  Ballinger  v.  Tarbell,  16  Iowa,  491;  ler,  43  Me.  401;  Hendrick  v.  Whitte- 
85  Am.  Dec.  527;  McAlpin  v.  Sweet-  more,  105  Mass.  23;  Drake  v.  Duve- 
ser,  76  Ind.  78;  Estate  of  Newman,  75  nick,  45  Cal.  455;  Lane  v.  Innes,  43 
Cal.  213;  7  Am.  St.  Rep.  146.  Contra,  Minn.  136;  Schobacher  v.  Germantown 
Johnson  v.  Baker,  88  111.  98;  87  Am.  F.  M.  Co.,  59  Wis.  86;  Hume  p.  Con- 
Dec.  293.  duitt,  76  Ind.  598;  McCormick  v. 
3  Whitwell  V.  Barbier,  7  Cal.  54;  Webster,  89  Ind.  105;  Dutton  v.  Hob- 
Dorente  V.  Sullivan,  7  Cal.  279;  Smith  son,  7  Kan.  196;  Myers  v.  Davis,  47 
V.  Bradley,  6  Smedes  &  M.  485;  Iowa,  325;  Sims  v.  Gray,  5  Rep.  504 
Moomey  v.  Maas,  22  Iowa,  380;  92  Town  of  Lyons  i;.  Cooledgc,  89  111.  529 
Am.  Dec.  395;  Peck  v.  Strauss,  33  Cal.  De  Tar  v.  Boone  Co.,  34  Iowa,  488 
678;  Myers  v.  Overton,  2  Abb.  Pr.  Pope  v.  Hooper,  5  Rep.  72;  Sao.  Sav- 
344;  Hunter  i;.  Lester,  18  How.  Pr.  347;  ings  Bank  v.  Spencer,  53  Cal.  737. 
Haughey  v.  Wilson,  1  Hilt.  259;  Kipp         "  A  distinction  is  to  be  made  betweea 


§  126  VOID   JUDGMENTS.  214 

service  of  process,  the  presumption  exists  that  the  court 
considered  and  determined  the  question  whether  the  acts 
done  were  sufficient  or  insufficient.  If  so,  the  conclusion 
reached  by  the  court,  being  derived  from  hearing  and 
deliberating  upon  a  matter  which,  by  law,  it  was  author- 
ized to  hear  and  decide,  though  erroneous,  cannot  be 
void.  When  in  a  proceeding  by  attachment  the  ground 
required  by  the  statute  for  the  issuing  and  execution  of 
the  process  has  been  laid,  and  the  process  has  been  issued 
and  executed,  the  jurisdiction  of  the  court  is  complete. 
If  the  subsequent  proceedings  do  not  conform  to  law,  the 
judgment  may  be  reversed.  When  there  has  been  an  in- 
sufficient publication,  or  an  entire  failure  to  publish,  the 
proceedings  are  not  so  invalidated  as  to  be  made  void.' 
A  service  of  process  defective  in  giving  four  days'  notice, 
when  the  law  required  five  daj'^s'  notice,  is  nevertheless 
sufficient  to  support  the  judgment  of  a  justice  of  the  peace.^ 
In  proceedings  in  personam,  a  judgment  is  undoubtedly 
void  if  it  is  shown  that  the  party  against  whom  it  was 
rendered  did  not  appear  in  the  action  and  that  process 
was  not  served  upon  him;'  but  it  is  not  indispensable  to 
the  jurisdiction  of  the  court  that  either  the  process  or  its 

a  case  where  there  is  no  service  what-  in  which  the  courts  have,  in  other  re- 

ever,  and  one  which  is  simply  defective  spects,  been  loath  to  accord  any  favors 

or   irregular.     In  the   first    case,   the  to  records  suffering  from  symptoms  of 

court  acquires  no  jurisdiction,  and  its  jurisdictional   infirmity:    Christian    v. 

judgment  is  void;  in  the  other  case,  if  O'Neal,   46  Miss.   669;  Harrington  v. 

the  court  to  which  the  process  is  re-  WofFord,    46   Miss.    31;,  Campbell  v. 

turnable   adjudges  the   service  to  be  Hays,  41  Miss.  561. 

sufficient,  and  renders  judgment  there-  ^  Martin  v.  Hall,  70  Ala.  421;  Paine'a 

on,  such   judgment  is  not  void,  but  Lessee   v.    Moreland,     15    Ohio,    435; 

only  subject   to   be  set   aside   by  the  Beech  v.  Abbott,  6  Vt.  5S6;  Matter  of 

court  which  gave  it,  upon  seasonable  Clark,  3  Denio,  167;  Williams  v.  Stew- 

and    proper  application,    or   reversed  art,   3   Wis.    773;   Drake   on  Attach- 

upon  appeal ":  Isaacs  v.  Price,  2  Dill,  ments,  sees.  447,  448. 

351.     A  judgment  is  not  void  because  ^  Balliuger  v.  Tarbell,  16  Iowa,  492; 

rendered  before  or  after  the  return  day  85  Am.  Dec.  527. 

named  in  the  summons.     It   is  only  ^  Freeman  u.  Alderson,  11917.  S.  188; 

liable  to  be  vacated  for  irregularity:  Elliot  v.   McCormack,   144  Mass.   11; 

Glover  v.  Holman,  3  Heisk.  519;  West  St.  Clair  v.  Cox,  106  U.  S.  353;  Flint 

V.  Williamson,  1  Swan,  277.    The  rule  R.  S.  Co.  v.  Roberts,  2  Fla.   102;  48 

that  defective  service  of  process  does  Am.   Dec.   178;  Capehart  v.  Cunning- 

not  render  the  judgment  liable  to  sue-  ham,    12   W.    Va.    750;    Anderson   v. 

cessful  collateral  attack  has  been  fre-  Hawhe,   115  111.   33;  Horner  v.   State 

quently  enforced  in  Mississippi,  a  state  Bank,  1  Ind.  130;  48  Am.  Dec.  355. 


215  VOID    JUDGMENTS.  §  126 

service  should  be  in  all  respects  regular.  We  therefore 
proceed  to  consider  what  defects,  either  in  the  process  or 
its  service,  are  sufficient  and  what  insufficient  to  over- 
throw the  judgment.  In  many  of  the  states,  their  stat- 
utes declare  what  the  summons  or  other  process  designed 
to  bring  defendant  into  court  shall  contain,  and  some- 
times these  statutory  provisions  have  been  deemed  man- 
datory, and  judgments  declared  void  for  non-compliance 
therewith.  Thus  in  Colorado,  a  summons  was  adjudged 
to  be  fatally  defective,  and  the  judgment  based  thereon 
void,  because  of  the  omission  to  state  in  such  summons,  as 
required  by  statute,  "the  cause  and  general  nature  of  an 
action,"  and  because  it  notified  defendant  that  judgment 
would  be  taken  against  him  for  a  sum  designated,  when 
it  should  have  informed  that  the  plaintiff  would  "  apply 
to  the  court  for  the  relief  demanded  in  the  complaint";^ 
but  even  in  this  state  it  is  conceded  that  a  literal  compli- 
ance with  the  statute  is  not  necessary,  and  the  omission 
of  some  of  the  words  w^hich  it  directs  the  summons  to 
contain  not  fatal  to  the  judgment.^  The  objects  to  be 
accomplished  by  process  are  to  advise  the  defendant  that 
an  action  or  proceeding  has  been  commenced  against  him 
by  plaintiff,  and  warn  him  that  he  must  appear  within  a 
time  and  at  a  place  named  and  make  such  defense  as  he 
has,  and  in  default  of  his  so  doing,  that  judgment  against 
him  will  be  applied  for  or  taken  in  a  sum  designated,  or 
for  relief  specified.  If  the  summons  actually  issued  accom- 
plishes these  purposes,  it  should  be  held  sufficient  to  confer 
jurisdiction,  though  it  may  be  irregular  in  not  containing 
other  statements  required  by  the  statute.  If,  on  the  other 
hand,  it  is  wanting  in  these  essential  particulars,  it  will 
generally  fail  to  give  the  court  jurisdiction.^  In  Iowa,  a 
judgment  was  held  void  because  the  name  of  the  plaintiff", 
as  shown  by  the  summons,  was  Pike,  when  in  fact,  and 
according  to  the  complaint,  it  was  Hike;*  and  in  Idaho  a 

1  Atchison,  Topeka  etc.  R.  R.  Co.  v.         ^  Pickering  v.  State,  106  Ind.  228. 
Nicholla,  8  Col.  188.  "  Newman    v.    Bowers,    72    Iowa, 

2  Kimball  v.  Castagnio,  8  Col.  525.       465. 


§  126  VOID    JUDGMENTS.  216 

like  conclusion  was  announced  because  defendants  were 
named  in  the  alternative,  as  A,  B,  C,  or  D.'  The  general 
rule  is,  that  if  process  is  amendable  it  is  not  void,  and 
will  support  a  judgment,^  unless  it  is  not  sufficient  to 
warn  defendant  of  an  action  against  him,  and  when  and 
before  what  court  he  must  make  his  defense.^  Therefore 
a  judgment  will,  when  collaterally  attacked,  be  supported 
by  process  though  it  contains  a  statement  that  "  plaintiff 
will  take  judgment  for  a  sum  named,"  when  the  statute 
requires  it  to  state  that  "the  plaintiff  will  apply  to  the 
court  for  the  relief  demanded  in  the  complaint";*  or  directs 
defendants  "to  appear  on  the  first  Monday,  1877,  of  the 
next  term  of  the  court  to  be  holden  at  Carthage,"  when 
the  court  referred  to  held  terms  at  the  place  designated, 
the  time  of  commencement  of  which  was  fixed  by  law;^  or 
declared  that  the  plaintiff  would  apply  to  the  court  for  the 
relief  demanded  in  the  complaint,  when  it  should  have 
stated  that  plaintiff  will  take  judgment  for  a  sum  specified 
in  the  summons;®  or  because  the  summons  was  not  at- 
tested by  the  seal  of  the  court,^  or  did  not  show  where  the 
defendants  should  appear.^  In  an  action  to  foreclose  a 
lien,  if  the  summons  refers  to  the  petition  on  file,  the 
fact  that  it  does  not  state  that  a  money  judgment  is  sought 
is  not  fatal  to  such  judgment  if  rendered.^ 

So  far  as  a  personal  service  of  summons  is  concerned, 
it  seems  to  us  that  it  should  be  deemed  suflficient  to 
support  a  judgment  when  collaterally  attacked  that  the 
summons  was  delivered  to  the  defendant  under  such 
circumstances  as  to  advise  him  that  it  was  intended  as  a 
service  of  process  upon  him.  A  judgment  was,  however, 
declared  void  in  Kentucky  because  the  action  was  in  the 
name  of  a  sheriff,  though  he  had  no  pecuniary  interest 

*  Alexander    v.    Leland,    1    Idaho,         ^  Miller  w.  Zeigler,  3  Utah,  17. 
N.  S.,  425.  '  Boyd  v.  Fitch,  71  Ind.  306. 

2  Baker  v.  Thompson,  75  Ga.  164.  ^  Hollingsworth  v.    State,   111  Ind. 

3  Kitsmiller   v.    Kitchen,    24   Iowa,     289. 

163.  9  Blair  v.  Wolf,  72  Iowa,  246;  York 

*  Keybers  v.  McComber,  67  Cal.  395.     v.  Boardman,  40  Iowa,  57. 

*  Jasper  Co.  v.  Wadlow,  82  Mo.  172. 


217  VOID    JUDGMENTS.  §  126 

therein,  and  the  service  of  process  was  made  by  liim.^ 
That  a  copy  of  the  summons  given  to  the  defendant  was 
incorrect,  and  designated  the  amount  which  the  phiintiff 
sought  to  recover  as  less  than  that  named  in  the  original 
writ  cannot  render  a  judgment  by  default  based  thereon 
void.^  A  defect  in  the  form  of  a  return  made  by  an 
officer  serving  a  summons  is  not  sufficient  to  avoid  the 
judgment,  especially  if  it  appears  from  other  evidence 
that  the  service  was  properly  made.*  A  service  of  process 
before  an  action  is  commenced,*  or  upon  a  person  other 
than  the  defendant,^  or  upon  an  employee  of  a  corpora- 
tion,^ when  the  law  requires  it  to  be  upon  its  general  agent, 
or  the  acceptance  of  its  service  by  one  not  authorized  to 
do  so,^  is  not  in  law  any  service  at  all,  and  a  judgment 
thereon  is  void. 

Because  a  court  has  no  jurisdiction  to  compel  the  ap- 
pearance of  a  non-resident  personally,  but  may  by  service 
of  its  process  constructively  or  beyond  the  state  acquire 
jurisdiction  over  his  property  which  is  attached  in  the 
action,  sufficient  to  authorize  it  to  render  a  judgment  to 
be  enforced  out  of  such  property,  the  service  of  the  sum- 
mons and  the  levy  of  the  attachment  are  both  essential 
to  the  support  of  the  judgment,^  unless  the  statute  author- 
izes a  proceeding  so  clearly  in  rem  that  judgment  may  be 
pronounced  upon  seizing  the  property,  and  without  at- 
tempting to  serve  the  summons.  It  is  further  essential 
that  the  cause  of  action  on  which  the  attachment  issued 
should  be  sustained.  Plaintiff  cannot,  by  taking  out  an 
attachment  and  levying  it  upon  the  property  of  a  non- 
resident, and  the  constructive  service  of  process  on  him, 
entitle  himself  to  a  judgment  enforceable  out  of  such 
property,  if  the  cause  of  action  on  which  he  recovers  is 

1  Knott  V.  Jarboe,  1  Met.  (Ky.)  505.         «  Great  West  etc.  Co.  v.  Woodmaa 

2  Bassett  v.  Mitchell,  40  Kan.  549;     etc.  Co.,  12  Col.  46;  13  Am.  St.  Rep. 
Hale  V.  McComas,  59  Tex.  484.  204 

^  Schee  V.  Granger,  78  Iowa,  101.  '  Finney  v.  Clark,  84  Va   354 

*  South  Bend  P.  Co.  v.  Manahan,  62  «  Segar    v.    Muskegon   etc.    Co      81 

Mich    143.  Mich.  344;  Stuart  i>.  Aiidersou, /O  lex. 

^  Heffuer  v.  Gunz,  29  Minn.  108.  58S. 


§   127  VOID    JUDGMENTS.  218 

not  the  one  upon  which  he  procured  the  attachment,  nor 
one  upon  which  any  writ  of  attachment  was  authorized 
to  be  issued.^  And,  generally,  it  appears  proper  to  limit 
the  effect  of  process  to  the  claims  and  causes  of  action  of 
which  it  gives  notice;  and  where  a  complaint  is  filed,  an 
attachment  levied,  and  process  issued  and  constructively 
served,  all  founded  upon  and  referring  to  a  particular 
cause,  of  action,  the  plaintiff  has  no  right  to  thereafter 
amend  his  complaint  by  setting  forth  a  different  cause  of 
action,  and  then  to  take  judgment  based  upon  the  levy 
of  attachment  and  the  service  of  process,  founded  on  the 
original  complaint;  and  such  judgment,  if  so  taken,  is 
probably  void.^ 

§  127.  Constructive  Service  of  Process.  —  Under  the 
fourteenth  amendment  to  the  constitution  of  the  United 
States,  declaring  that  no  state  shall  "deprive  any  person 
of  life,  liberty,  or  property  without  due  process  of  law,"  it 
is  manifest  that  a  state  cannot  authorize  a  judgment 
against  a  defendant  without  giving  him  some  opportu- 
nity to  show  that  it  is  unjust;  that  what  is  due  process  of 
law  is  a  question  for  the  determination  of  the  national 
courts;  and  that  such  determination  as  they  have  made,  or 
shall  hereafter  make,  respecting  it  must  be  followed  by 
the  state  courts.'  As  yet  we  have  no  very  precise  judicial 
definition  of  due  process  of  law,  and  must  therefore  apply 
such  general  definitions  as  have  been  given.  "  It  is  suf- 
ficient," said  the  supreme  court  of  the  United  States,  "  to 
observe  here  that  by  due  process  is  meant  one  which,  fol- 
lowing the  forms  of  law,  is  appropriate  to  the  case  and 
just  to  the  parties  to  be  affected.  It  must  be  pursued  in 
the  ordinary  mode  prescribed  by  law;  it  must  be  adapted 
to  the  end  to  be  attained;  and  wherever  it  is  necessary 
for  the  protection  of  the  parties,  it  must  give  them  an 

1  Mudge  V.  Steinhart,  78  Cal.  34;  12  »  Belcher  v.  Chambers,  53  Cal.  635; 
Am.  St.  Rep.  17.  Pennoyer  v.  Neff,  95  U.  S.  714;  Stuart 

2  Stuart  V.  Anderson,  70  Tex.  588;  v.  Palmer,  74  N.  Y.  183;  30  Am.  Rep. 
McRee  v.  Brown,  45  Tex.  507;  Morri-  289;  Davidson  v.  New  Orleans,  96 
son  V.  Walker,  22  Tex.  20.  U.  S.  97. 


219  VOID    JUDGMENTS.  §  127 

opportunity  to  be  heard  respecting  the  justice  of  the  judg- 
ment sought.  The  clause  in  question  means,  therefore, 
that  there  can  be  no  proceeding  against  life,  liberty,  or 
property  which  may  result  in  the  deprivation  of  either, 
without  the  observance  of  those  general  rules  established 
in  our  system  of  jurisprudence  for  the  security  of  private 
rights." '  It  is,  perhaps,  not  essential  that  the  service  of 
process  and  the  opportunity  to  be  heard  occur  before  the 
formal  entry  of  judgment,  if  the  parties  affected  thereby, 
notwithstanding  its  entry,  retain  the  right  to  resist  and 
prevent  its  enforcement  whenever  it  is  sought  to  be  used 
against  them  or  their  property.^ 

The  service  of  process  need  not  be  personal.  To  require 
it  to  be  personal  in  all  instances  would  be  to  deny  justice 
in  all  cases  where  the  party  from  whom  it  was  due  ab- 
sented or  concealed  himself,  or  otherwise  eluded  the 
agents  of  the  law.  Each  state  may,  doubtless,  provide  the 
mode  in  which  the  process  of  its  courts  may  be  served,^ 
provided  the  parties  against  whom  it  issues  are  not  de- 
prived of  "  an  opportunity  to  be  heard  respecting  the  jus- 
tice of  the  judgment  sought."  Therefore  citizens  and 
residents  of  a  state  may,  if  its  laws  so  provide,  be  served 
with  process  by  the  publication  thereof,  or  by  leaving  it 
at  their  usual  place  of  abode,  or  in  such  other  mode  as  the 
legislature  deems  proper  under  the  circumstances  of  the 
case,  if  it  appears  probable  that  it  will  advise  them  of 
the  proceedings  against  them  and  afford  them  an  oppor- 
tunity to  defend.^     It  is  true  that  on  such  service  no  per- 

1  Hagar  v.  Reclamation  Dist.,  Ill  Cush.  183;  Henderson  v.  Stanford,  105 
U.  S.  708;  Hurtado  v.  California,  110  Mas3.  104;  Morrison  v.  Underwood,  5 
U.  S.  516.  Cush.  52;  post,  sec.  120  a;  Otis  v.  Dar- 

2  Flint  River  Steamboat  Co.  v.  Fob-  gan,  53  Ala.  178;  Burman  v.  Common- 
ter,  5Ga.  194;  48  Am.  Dec.  248;  Hagar  wealth,  1  Ducr,  210.  In  the  only 
V.  Reclamation  Dist.,  Ill  U.  S.  701.  case  in  which,  so  far  as  we  are  aware, 

3  Welch  V.  Sykes,  3  Gilm,  197;  44  tlie  question  has  directly  presented 
Am.  Dec.  689.  itself  for  decision,  it  was  decided  that, 

*  Thouvenin  v.  Rodrigues,  24  Tex.  as   to   residents   upon   whom    process 

468;   Hurlburt  v.  Thomas,    55   Conn,  could  be  personally  served,  it  was  be- 

181;   3   Am.   St.    Rep.   43;    Happy  v.  yond  the  power  of  the  legislature  to 

Mosher,  48  N.  Y.  313;   Rockwell  v.  authorize  service  by  publication.    The 

Nearing,  35  N.  Y.  202;  Beard  v.  Beard,  action  was   to  foreclose   a  mortgage, 

21    Ind.    321;  Orcutt  v.   Ranncy,    10  and  in  determining  it,  the  court  said 


127 


VOID   JUDGMENTS. 


220 


sonal  ju(3gment  can  be  rendered  against  one  not  a  citizen 
or  a  resident  of  the  state;  but  this  result  does  not  follow 


(Bardwell  v.  Collins,  44  Minn.  97;  20 
Am.  St.  Rep.  547):  "The  only  remain- 
ing question,  therefore,  is,  whether  it 
is  competent  tor  the  legislature  to 
authorize  such  service  in  such  a-ctions 
upon  residents  of  the  state  personally 
present,  and  capable  of  being  found 
and  personally  served,  within  its  juris- 
diction. Is  such  service  '  dae  process 
of  law '  ?  In  determining  this  ques- 
tion, it  becomes  important,  first,  to 
consider  the  character  of  an  action  to 
foreclose  a  mortgage.  It  is  not  an 
action  in  rem,  but  an  action  in  per- 
sonam. It  is  true,  it  has  for  its  object 
certain  specific  real  property  against 
which  it  is  sought  to  enforce  the  lien 
of  the  mortgage;  and  in  that  sense  it 
partakes  somewhat  of  the  nature  of  a 
proceeding  in  rem,  but  not  differently, 
or  in  an}''  other  sense,  than  do  actions 
in  ejectment,  replevin,  for  specific  per- 
formance of  a  contract  to  convey,  to 
determine  adverse  claim  to  real  estate, 
and  the  like.  The  rights  and  equities 
of  all  parties  interested  in  the  mort- 
gaged premises  are  to  be  adjusted  in 
the  action,  which  proceeds,  nob  against 
the  property,  but  against  the  persons; 
and  the  judgment  binds  only  tliose 
who  are  parties  to  the  suit,  and  those 
in  privity  with  them:  Whalley  v.  El- 
dridge,  24  Minn.  358.  Next,  it  is  not 
only  an  action  in  personam,  but  is  also 
strictly  judicial  in  its  character,  pro- 
ceeding according  to  the  due  course  of 
common  law,  like  any  other  ordinary 
action  cognizable  in  courts  of  equity  or 
common  law.  These  facts  are  impor- 
tant for  the  reason  that  what  would  be 
due  process  of  law  in  one  kind  of  pro- 
ceeding might  not  be  such  in  another, 
for  reasons  that  will  be  alluded  to 
hereafter.  No  court  has  ever  at- 
tempted to  give  a  complete  or  exhaust- 
ive definition  of  the  term  'due  process 
of  law,'  for  it  is  incapable  of  any  such 
definition.  All  that  can  be  done  is  to 
lay  down  certain  general  principles, 
and  apply  these  to  the  facts  of  each 
case  as  they  arise.  Mr.  Webster,  in 
his  argument  in  the  Dartmouth  College 
case,  gave  an  exposition  of  the  worda 
'law  of  the  land,' and  'due  process 
of  law,'  which  has  often  been  quoted 
by  the  courts  with  approval,  viz. : 
'  The  general  law,  which  hears  before 


it  condemns;  which  proceeds  upon  in- 
quiry, and  renders  judgment  only  af  ,er 
trial.'  In  judicial  proceedings,  'due 
process  of  law '  requires  notice,  hear- 
infT,  and  judgment.  It  does  not  mean, 
of  course,  the  general  body  of  the  law, 
common  and  statute,  as  it  was  at  the 
time  the  constitution  took  effect;  for 
that  would  deny  to  the  legislature  the 
power  to  change  or  amend  the  law  in 
any  particular.  Neither,  on  the  other 
hand,  does  '  the  law  of  the  land'  or 
'  due  process  of  law'  mean  anything 
which  the  legislature  may  see  fit  to 
declare  to  be  such;  for  there  are  cer- 
tain fundamental  rights  which  our 
system  of  jurisprudence  has  always 
recognized  which  not  even  the  legisla- 
ture can  disregard  in  proceedings  by 
which  a  person  is  deprived  of  life, 
liberty,  or  property;  and  one  of  these 
is,  notice  before  judgment  in  all  judi- 
cial proceedings.  Although  the  legis- 
lature may  at  its  pleasure  provide  new 
remedies  or  change  old  ones,  the  power 
is  nevertheless  subject  to  the  condition 
that  it  cannot  remove  certain  ancient 
landmarks,  or  take  away  certain  funda- 
mental rights  which  have  been  always 
recognized  and  observed  in  judicial 
procedures.  Hence  it  becomes  im- 
portant, in  determining  what  kind  of 
notice  would  constitute  'due  process 
of  law '  in  any  judicial  proceeding 
affecting  a  man's  property,  to  ascertain 
what  notice  has  always  been  required 
and  deemed  essentially  necessary  in 
actions  or  proceedings  of  that  kind, 
according  to  that  system  of  jurispru- 
dence of  which  ours  is  derivative.  In 
proceedings  in  rem,  as  in  admiralt}', 
and  the  like,  where  the  process  of  the 
court  goes  against  the  thing,  which  is 
in  the  custody  of  the  court,  and  is 
technically  the  defendant,  and  persons 
are  not  made  parties  to  the  suits,  but 
come  in  rather  as  interveners,  it  is  not 
essential  to  the  jurisdiction  that  the 
persons  having  an  interest  in  the  thing 
to  be  affected  by  the  judgment  should 
have  personal  notice  of  the  proceeding, 
or  in  fact  any  other  notice  than  such 
as  is  implied  in  the  seizure  of  the  thing 
itself.  There  are  other  proceedings  in 
the  nature  of  proceedings  in  rem,  many 
of  them  not  strictly  judicial,  and  none 
of  them  proceedings  according  to  the 


221 


VOID    JUDGMENTS. 


§127 


from  the  mode  of  serving  process,  but  from  the  fact  that 
he  is  not  personally  within  the  jurisdiction  of  the  state, 


course  of  common  law,  — siich  as  the 
probate  of  wills,  administratioa  on 
the  estates  of  deceased  persons,  the 
exercise  of  the  right  of  eminent 
domain,  the  exercise  of  the  power  of 
taxation,  —  which  affect  property 
rights,  but  in  which  personal  notice 
to  persons  interested  in  the  subject  or 
object  of  the  proceedings  has  never 
been  deemed  necessary.  Some  form 
of  substituted  service  of  notice,  as  by 
publication,  has  always,  from  consid- 
erations of  public  policy  or  necessity, 
been  deemed  appropriate  to  such  pro- 
ceedings, and  hence,  as  to  them,  '  due 
process  of  law.'  But  we  think  that, 
from  the  earliest  period  of  English 
jurisprudence  down  to  the  present,  as 
well  as  in  the  jurisprudence  of  the 
.United  States,  derived  from  that  of 
England,  it  has  always  been  considered 
a  cardinal  and  fundamental  principle 
that,  in  actions  in  personam  proceeding 
according  to  the  course  of  common 
law,  personal  service  (or  its  equiva- 
lent, as  by  leaving  a  copy  at  his 
usual  place  of  abode)  of  the  writ, 
process,  or  summons  must  be  made  on 
all  defendants  resident  and  to  be  found 
within  the  jurisdiction  of  the  court. 
We  do  not  mean  that  the  term  '  pro- 
ceeding according  to  the  course  of  the 
common  law,'  as  used  in  the  books,  is 
to  be  understood  as  meaning,  neces- 
sarily and  always,  personal  or  actual 
service  of  process;  for  although  service 
by  publication  is  of  modern  origin, 
there  has  always  been  some  mode  by 
which  jurisdiction  has  been  obtained 
at  common  law  by  something  amount- 
ing to  or  equivalent  to  constructive 
service,  where  the  defendant  could  not 
be  found  and  served  personally.  But 
what  we  do  mean  to  assert  is,  that  the 
right  to  resort  to  such  constructive  or 
substituted  service,  in  personal  actions 
proceeding  according  to  the  course  of 
the  common  law,  rests  upon  the  necessi- 
ties of  the  case,  and  has  always  been 
limited  and  restricted  to  cases  where 
personal  service  could  not  be  made 
because  the  defendant  was  a  non-resi- 
dent, or  had  absconded,  or  had  con- 
cealed himself  for  the  purpose  of  avoid- 
ing service.  As  showing  what  means 
were  resorted  to  as  amounting  or  equiv- 
alent to  constructive  service,  and  how 


strictly  it  was  limited  to  cases  of  neces- 
sity by  both  courts  of  common  law  and 
courts  of  chancery,  reference  need  only 
be  had  to  3  Blackstone's  Commenta- 
ries, 283,  444.  As  a  substitute  for  the 
means  formerly  resorted  to  in  England 
in  such  cases,  most  of  the  American 
states  have  adopted  service  of  the  pro- 
cess or  summons  by  publication.  But 
we  have  found  no  statute,  except  the 
one  now  under  consideration,  which  has 
assumed  to  authorize  such  a  mode  of 
service,  and  have  found  no  case  where 
its  validity  has  been  sustained  by  the 
courts,  except  as  to  defendants  who 
could  not  be  found  within  the  juris- 
diction, either  becaiise  of  non-resi- 
dence, or  because  they  had  absconded, 
or  concealed  themselves  to  avoid  the 
service  of  process.  We  think  this  will 
be  found  true  in  every  instance,  from 
the  earliest  decisions  on  the  subject 
down  to  the  latest  utterance  of  the 
supreme  court  of  the  United  S  bates, 
in  Arndt  v.  Griggs,  134  U.  S.  316,  in 
which  that  court  took  occasion  to  set 
at  rest  some  misapprehensions  as  to 
the  scope  of  their  previous  decision 
in  Hart  v.  Sansom,  110  U.  S.  151.  We 
think  it  would  be  a  surprise  to  the 
bench  and  the  bar  of  the  country  if  it 
should  be  held  that  process  or  sum- 
mons in  ordinary  civil  actions  might 
be  served  on  resident  defendants, 
present  and  capable  of  being  found 
within  the  jurisdiction  of  the  court, 
merely  by  publication  in  a  newspaper. 
The  dangers  and  abuses  that  would 
arise  from  such  a  practice  are  too  ap- 
parent to  require  to  be  named  or  even 
suggested.  So  radical  a  departure  is 
this  from  the  uniform  and  well-estab- 
lished ideas  of  what  constitutes  due 
process  of  law  in  such  cases  that,  al- 
though this  act  has  been  on  the  statute- 
books  for  twenty-four  years,  we  doubt 
whether  one  lawyer  in  twenty  is  aware 
of  its  existence;  and  we  have  yet  to 
hear  of  any  case,  except  the  present, 
where  any  one  has  ventured  to  act 
upon  it.  It  is,  in  our  judgment,  be- 
yond the  power  of  the  legislature  to 
disregard  so  fundamental  iind  long- 
established  a  principle  of  our  juris- 
prudetice.  Service  l)y  pul)lication, 
under  such  circumstancus,  i.s  not  'due 
process   of    law,'  and   therefore    any 


§  127  VOID    JUDGMENTS.  222 

and  cannot  by  any  means  be  required  to  appear  in  its 
courts. 

In  many  of  the  decisions  upon  the  subject,  statutes  au- 
thorizing the  service  of  process  by  publication  against 
non-residents  have  been  construed  as  in  opposition  to  the 
course  of  proceedings  at  common  law;  and  a  strict  com- 
pliance with  all  the  material  directions  of  the  statutes  has 
been  required  to  appear  upon  the  face  of  the  record,  in 
order  to  impart  validity  to  the  judgment.^  A  publication 
made  in  the  absence  of  any  law  authorizing  it  is  the  same 
in  effect  as  no  publication.  A  judgment  based  upon  it  is 
void.^  The  same  result  follows  when  the  publication  was 
made  without  any  affidavit  or  order  of  court  to  support  it,^ 
or  when,  though  there  is  an  order  of  court,  there  is  noth- 
ing upon  which  to  base  it,  as  where  such  order  could  only 
be  made  upon  a  verified  complaint,  and  the  complaint  is 
not  verified.* 

"The  general  presumption  indulged  in  support  of  the 
judgments  and  decrees  of  the  superior  courts  is,  however, 
limited  to  jurisdiction  over  persons  within  their  territorial 
limits,  —  persons  who  can  be  reached  by  their  process, — 
and  also  over  proceedings  which  are  in  accordance  with 
the  course  of  the  common  law.  Whenever  it  appears,  either 
from  inspection  of  the  record  or  by  evidence  outside  of 
the  record,  that  the  defendants  were,  at  the  time  of  the  al- 
leged service  upon  them,  beyond  the  reach  of  the  process 
of  the  court,  the  presumption  ceases,  and  the  burden  of 
establishing  the  jurisdiction  over  them  is  thrown  upon 

statute  assuming  to  authorize  it  is  un-  Zacharie  v.  Bowers,  1   Smedes  &  M. 

constitutional.     It  would  be  of  little  584;    40    Am.    Dec.    Ill;    O'Rear    v. 

use  to  cite  authorities  upon  a  subject  Lazarus,  8  Col.  608;  Hebel  v.  Amazon 

which  has  been  so  much  and  so  often  Ins.  Co.,  33  Mich.  400;  Bryan  v.  Mc- 

discussed  in  its  many  phases,  as  each  Dowell,  15  Lea,  581. 

case  must  be  determined  upon  its  own  ^  HoUingsworth  v.  Barbour,  4  Pet. 

facts,    and    hence    the   decided   cases  466;  Shields  v.  Miller,  9  Kan.  390. 

would  ordinarily  be  ia  point   only  by  ^  People    v.    Mullan,    65   Cal.    396; 

way  of  analogy.    See,  however,  BroM^n  Murphy  v.  Lyons,  19  Neb.  689;  Peo^Dle 

V.  Board  of  Levee  Comm'rs,  50  Miss.  v.  Greene,  74  Cal.  400;  5  Am.  St.  Rep. 

468."  448;  Chase  v.   Kavnor,  78  Iowa,  449; 

1  Hallett  V.  Righters,  13  How.  Pr.  Hyde  v.  Redding,  74  Cal.  493. 

43;  Boyland  v.  Boyland,  18  111.  552;  *  Frisk  v.  Reigelman,  75  Wis.  499; 

Brownfield    v.    Dyer,    7    Bush,    505;  17  Am.  St.  Rep.  98. 


223  VOID    JUDGMENTS.  §  127 

the  party  who  invokes  the  benefit  or  protection  of  its 
judgments  and  decrees.  So,  too,  the  presumption  ceases 
when  the  proceedings  are  not  in  accordance  willi  tl;ie 
course  of  common  law." '  Constructive  service  by  publi- 
cation in  a  case  where  the  defendants  are  beyond  the  ter- 
ritorial limits  of  the  court  by  virtue  of  an  order  made  and 
enforced  by  the  military  authorities  in  time  of  war,  and 
are  not  allowed  to  return,  is  a  mere  idle  ceremony.  It 
can  by  no  possibility  afford  to  defendants  an  opportunity 
of  making  a  complete  defense  or  of  appearing  in  court 
and  attending  to  their  interests.  A  judgment  based  upon 
it  is  void.'^  But  a  party  who  voluntarily  entered  the  con- 
federate lines  to  engage  in  hostilities  against  the  United 
States,  and  who,  on  that  account,  was  not  able  to  return, 
cannot  urge  a  condition  of  facts  resulting  from  his  own 
wrong  as  a  valid  objection  to  proceedings  against  him  as 
an  absentee.'  But  in  quite  a  number  of  cases,  the  same 
presumptions  have  been  applied  to  judgments  based  upon 
constructive  service  as  to  those  based  upon  actual  service. 
The  position  is  taken  that  presumptions  of  regularity  are 
applicable  to  the  proceedings  of  courts  of  record,  not  be- 
cause of  the  particular  means  which  those  tribunals  hap- 
pen to  employ,  under  the  authority  of  the  law,  for  the 
purpose  of  acquiring  jurisdiction  over  the  defendant,  but 
because  of  the  high  character  of  the  courts  themselves; 
and  that  this  character  is  essentially  the  same  in  all  cases, 
irrespective  of  the  methods  employed  in  the  service  of 
process.  Therefore  the  fact  that  the  affidavit  required  by 
law  to  precede  and  authorize  the  order  for  publication 
does  not  appear  from  the  record  will  not  make  the  judg- 

'  Judge  Field  in  Gray  v.  Larrimore,  117  U.  S.    255,  shown  in   the  latter 

2  Abb.  542;  and  in  Galpin  v.  Page,  18  part  of  this  section. 

Wall.  350;   3   Saw.  93;   Neff  v.   Pen-  •'  Dean   v.    Nelson,    10    Wall.     158; 

noyer,  3  Saw.  274;  Belcher  v.   Cham-  Lassere   v.  Rocherean,   17  Wall.  437; 

bers,  53  Cal.  635;  9  Rep.  40.    We  know  Earle    v.    McVeigh,    91    U.    S.     503; 

not  how  to  reconcile  the  language  of  Dorr  v.  Rohr,  82  Va.  359;  3  Am.  St. 

the  court,  in  Galpin  v.  Page,  quoted  Rep.  106. 

above,  with  its  more  recent  utterances  *  Ludlow  v.  Rimsey.  11  Wall.  581; 

in  Applegate  v.  L.  &  C.  Co.  Min.  Co.,  Foreman  v.  Carter,  9  Kan.  681. 


§  127  VOID    JUDGMENTS.  224 

merit  vulnerable  to  collateral  attack.'  Constructive  ser- 
vice, though  not  employed  in  the  manner  now  generally 
authorized  by  statute,  was  nevertheless  well  known  to  the 
common  law  and  to  the  chancery  practice  at  an  early 
23eriod.^  It  is  therefore  "  a  proceeding  according  to  the 
course  of  common  law."^ 

The  tendency  of  recent  decisions  is  to  strengthen  the 
position  that  the  orders  and  proceedings  of  courts  of  gen- 
eral jurisdiction,  where  process  is  constructively  served, 
are  supported  by  the  same  presumptions  as  where  the 
court  proceeds  upon  personal  service,  and  can  no  more 
be  avoided  for  mere  errors  or  irregularities  than  can  its 
other  orders  and  judgments.*  The  authorities  upon  this 
side  of  the  question  have  apparently  received  an  unex- 
pected accession  from  the  supreme  court  of  the  United 
States.  From  the  language  employed  by  that  tribunal  in 
the  case  of  Galpin  v.  Page,  already  quoted  in  this  section, 
we  understood  it  to  be  firmly  committed  to  the  doctrine 
that  when  it  appeared  that  the  defendants  were  served 
with  process  by  publication,  no  jurisdictional  presump- 
tions could  be  indulged  in  favor  of  the  judgment,  but  its 
language  is  now  limited  in  its  application  to  cases  in 
which  it  does  not  appear  that  the  court  made  any  order 
justifying  such  publication.  On  the  other  hand,  if  it  is 
shown  that  the  court  ordered  such  service,  its  judgments 
are  supported  b}^  the  same  presumptions  as  in  other  cases, 
unless  the  statute  requires  that  evidence  of  some  jurisdic- 
tional fact  shall  appear  by  record  and  it  does  not  so  ap- 
pear. The  question  upon  which  doubt  yet  remains  is  as 
to  what  the  court  understands  to  be  a  requirement  that  a 

^  Nash  V.  Church,  10  Wis.  312;  Law-  v.  HoUoway,  55  Iowa,   179;  Quarl  v. 

ler's   Heirs   v.    White,    27    Tex.    250;  Abbett,    102  Ind.   2.33;  52  Am.  Rep. 

Gemmell  v.  Rice,  13  Minn.  400;  New-  662;  Williams  v.  Morehead,  33  Kan. 

comb's   Ex'rs  v.  Newcomb,  13   Bush,  609;  Spillman  v.  Williams,   91   N.   C. 

544;  26  Am.  Rep.  222.  483;  Williams  v.  Hudson,  93  Mo,  524; 

2  3  Bla.  Com.  283,  444.  Oswald  v.  Kempmann,  28  Fed.  Rep. 

5  Hahn   v.    Kelly,  34  Cal.    417;   94  36;  Stuart  v.  Anderson,  70  Tex.  588; 

Am.  Dec.  742.  Adams  v.  Cowles,  95  Mo.  501;  6  Am. 

*  Fanning  v.  Krapfl,  68  Iowa,  244;  St.  Rep.  74. 
Dowell  V.  Lahr,  97  Ind.  146;  Everhart 


225 


VOID    JUDGMENTS. 


§127 


jurisdictional  fact  shall  appear  by  the  record.  If  it  means 
that  when  the  statute  declares  that  an  affidavit  or  other 
writing  shall  be  filed  to  procure  an  order  of  publication, 
and  that  some  written  evidence  shall  be  presented  to  the 
court  of  the  publication  as  ordered,  that  these  affidavits 
or  other  writings  are,  wiiether  made  so  by  statute  or  not, 
indispensable  parts  of  the  record,  so  that  when  they  are 
not  found  in  the  record,  the  existence  of  jurisdiction 
is  disproved,  little  has  been  gained  by  the  decision 
referred  to.  If,  on  the  other  hand,  it  means  that,  ex- 
cept as  to  matters  which  the  statute  has  expressly  re- 
quired to  be  a  part  of  the  record  or  judgment  roll,  the 
court  must  always  presume  that  jurisdiction  was  obtained, 
where  the  record  does  not  rebut  such  presumption,  then 
this  decision  is  an  important  aid  to  the  ultimate  estab- 
lishment of  the  rule  that  judgments  of  courts,  based  upon 
constructive  service  of  process,  are  supported  by  the  same 
presumptions  as   if  such  service  were  personal.^     There 


^  Appelgate  v.  Lexington  and  Carter 
County  Min.  Co.,  117  U.  S.  255.  In 
this  case  the  statute  under  which  the 
proceeding  resulting  in  the  judgment 
in  question  had  been  conducted  au- 
thorized the  court  to  appoint  a  day  for 
the  absent  defendants  to  enter  their 
appearance  in  the  suit,  and  required 
that  a  copy  of  its  order  should  be  pub- 
lished "in  the  Kentucky  Gazette  or 
Herald,  and  continued  for  two  months 
successively,  and  shall  also  be  pub- 
lished on  some  Sunday,  immediately 
after  divine  service,  in  such  church  or 
meeting-house  as  the  court  shall  direct, 
and  another  copy  shall  be  posted  at 
the  front  door  of  said  court-house."  In 
support  of  the  judgment,  extrinsic 
evidence  was  offered  of  the  publication 
of  the  Qrder  in  the  Kentucky  Gazette,- 
in  nine  successive  weekly  issues  of 
that  paper,  commencing  December  12, 
1798,  and  ending  February  7,  1799; 
but  there  was  no  evidence  of  the  pub- 
lication of  the  order  in  church  or  its 
posting  at  the  door  of  the  court-house. 
Proceeding  to  determine  the  case, 
after  stating  these  facts,  the  court 
said:  "But  the  record  contained  no 
proof  of  the  publication  and  posting  of 
the  notice  as  required  by  the  statute, 
JUDQ.  1.-15 


and  it  is  insisted  by  the  defendants  in 
this  case  that  the  record  itself  must 
show  the  publication  and  posting  of 
the  notice  as  required  by  law,  other- 
wise the  jurisdiction  of  the  court  does 
not  appear,  and  its  decree  is  abso- 
lutely void.  While  it  must  be  con- 
ceded that,  in  order  to  give  the  court 
jurisdiction  over  the  persons  of  the 
defendants,  all  the  steps  pointed  out 
by  the  statute  to  effect  constructive 
service  on  non-residents  were  neces- 
sary, yet  it  does  not  follow  that  the 
evidence  that  the  steps  were  taken 
must  appear  in  the  record,  unless,  in- 
deed, the  statute  expressly  or  by  im- 
plication requires  it.  The  court  which 
made  the  decree  in  the  case  of  Clark  v. 
Cotdiling  was  a  court  of  general  juris- 
diction. Therefore  every  presumption 
not  inconsistent  with  the  record  is  to 
be  indulged  in,  in  favor  of  its  jurisdic- 
tion: Kempe's  Lessee  v.  Kennedy,  5 
Cranch,  173;  Voorhees  v.  Bank  of  the 
United  States,  10  Pet.  449;  Grignon 
V.  Astor,  2  How.  319;  Harvey  v.  Tyler, 
2  Wall.  328.  It  is  to  be  presumed 
tliat  the  court,  before  making  its  de- 
cree, took  care  to  see  that  its  order  for 
constructive  service,  on  which  its  riglit 
to  make   the  decree    depended,    had 


§127 


VOID    JUDGMENTS. 


225 


are  decisions  indicating  that  when  a  statute  requires  the 
hVm<r  of  an   affidavit  to  precede  an  order  for  the  publica- 


been  obeyed.  That  this  presumption 
is  authorized  will  appear  by  the  follow- 
ing cases:  In  Harvey  v.  Tyler,  2  Wall. 
328,  the  court,  speaking  by  Mr.  Jus- 
tice Miller,  said:  'The  jurisdiction 
which  is  now  exercised  by  the  common- 
law  courts  in  this  country  is,  in  a  very 
large  proportion,  dependent  upon  spe- 
cial statutes  conferring  it la 

all  cases  where  the  new  powers  thus 
conferred  are  to  be  brought  into  ac- 
tion in  the  usual  form  of  common-law 
or  chancery  proceedings,  we  appre- 
hend there  can  be  little  doubt  that  the 
same  presumptions  as  to  the  jurisdic- 
tion of  the  court  and  the  conclusiveness 
of  its  action  will  be  made  as  in  cases 
falling  more  strictly  within  the  usual 
powers  of  the  court ' :  Page  342.  In 
Hall  ,..Law,  102  U.  S.  461,  the  validity 
of  a  partition  of  lands  made  by  acircuit 
court  of  the  state  of  Indiana  was  at- 
tacked. This  court,  speaking  by  Mr. 
Justice  Field,  said:  'AH  that  the  stat- 
ute designates  as  necessary  to  author- 
ize the  court  to  act  is,  that  there 
should  be  an  application  for  the  parti- 
tion by  one  or  more  joint  proprietors, 
after  giving  notice  of  the  intended  ap- 
plication in  a  public  newspaper  for  at 
least  four  weeks.  When  application 
is  made,  the  court  must  consider 
whether  it  is  by  a  proper  party,  whether 
it  is  sufficient  in  form  and  substance, 
and  whether  the  requisite  notice  has 
been  given,  as  prescribed.  Its  order 
made  thereon  is  an  adjudication  on 
these  matters '  :  Pages  463,  464.  The 
case  of  Voorhees  v.  Bank  of  the  United 
States,  10  Pet.  449,  was  an  action  of 
ejectment,  and  the  casi  turned  on  the 
validity  of  a  sale  of  the  premises  in 
controversy  under  a  judgment  of  the 
court  of  common  pleas  of  Hamilton 
County,  Ohio,  in  a  case  of  foreign  at- 
tachment. The  sale  was  attacked  on 
the  following  among  other  grounds: 
1.  Because  the  statute  authorizing 
the  proceeding  by  foreign  attachment 
required  that  an  affidavit  should  be 
made  and  filed  with  the  clerk  before 
the  writ  issued,  and  no  such  affidavit 
was  found  in  the  record;  2.  Because 
the  statute  directed  three  months'  no- 
tice to  be  given,  by  publication  in  a 
newspaper,  of  the  issuing  of  the  at- 
tachujeut,  before  judgment  should  be 


entered,  and  also  required  fifteen  days' 
notice  of  the  sale  to  be  given,  neither 
of  which  appeared  by  the  record  to 
have  been  done;  3.  Because  the  stat- 
ute require<l  that  the  defendant  should 
be  put  in  default  at  each  of  the  three 
terms  preceding  the  judgment,  and 
the  default  entered  of  record,  but  no 
entry  was  made  of  the  default  at  the 
last  of  the  three  terms.  But  the 
court  overruled  the  objections,  and 
sustained  the  validity  of  the  judgment 
and  the  sale.  It  said:  'But  the  provis- 
ions of  the  law  do  not  prescribe  what 
shall  be  deemed  evidence  that  such 
acts  have  been  done,  or  direct  that 
their  performance  sliall  appear  on  the 
record.  The  thirteenth  section  (of 
the  attachment  law),  which  gives  to 
the  conveyances  of  the  auditors  the 
same  efifect  as  a  deed  from  the  defend- 
ant in  the  attachment,  contains  no 
other  limitation  than  that  it  shall  be 
•'in  virtue  of  the  authority  herein 
granted."  This  leaves  the  question 
open  to  the  application  of  those  gen- 
eral principles  of  law  by  which  the 
validity  of  sales  made  under  judicial 
process  must  be  tested,  in  the  ascer- 
tainment of  which  we  do  not  think  it 
necessary  to  examine  the  record  in  the 
attachment  for  evidence  that  the  acts 
alleged  to  have  been  omitted  appear 
therein  to  have  been  done  ' :  Page  471. 
The  result  of  the  authorities,  and  what 
we  decide,  is,  that  where  a  court  of 
general  jurisdiction  is  authorized  in  a 
proceeding,  either  statutory,  or  at  law, 
or  in  equity,  to  bring  in  by  publication 
or  other  substituted  service  non-resi- 
dent defendants  interested  in  or  having 
a  lien  upon  property  lying  within  its 
territorial  jurisdiction,  l)ut  is  not  re- 
quired to  place  the  proof  of  service 
upon  the  record,  and  the  court  orders 
such  substituted  service,  it  will  be 
presumed  in  favor  of  the  jurisdiction 
that  service  was  made  as  ordered,  al- 
though no  evidence  thereof  appears  of 
record,  and  the  judgment  of  the  court, 
so  far  as  it  afifects  such  property,  will 
be  valid.  The  case  of  Galpm  v.  Page, 
18  Wall.  350,  cited  by  counsel  for  de- 
fendant, is  not  in  contlict  with  this 
proposition.  The  judgment  set  up  on 
one  side  and  attacked  on  the  other,  in 
that  case,  was  rendered  on  service  by 


227  VOID    JUDGMENTS.  §  128 

tion  of  process,  that  though  it  was  made  in  due  time,  and 
filed  on  the  day  the  judgment  was  entered,  yet  that  the 
failure  to  so  file  it  at  the  time  required  by  tlie  statute 
renders  the  judgment  void.^  Where  the  atfidavit  or  other 
proof  of  the  steps  constituting  the  constructive  service  of 
process  cannot  be  found  in  the  judgment  roll,  or  in  the 
files  of  the  court,  or  being  found  is  defective,  such  proof 
may  be  amended  or  supplied,  and  the  judgment  thereby 
supported.^ 

§  128.  Appearance  by  Attorney.  —  By  the  ancient  prac- 
tice, the  litigants  appeared  in  person,  and  were  not  author- 
ized to  appear  by  attorney  without  special  authority  from 
the  crown.  At  a  later  day,  the  right  to  appear  by  attor- 
ney was  recognized  by  various  statutes.  Under  these, 
the  attorney  was  at  first  appointed  orally  in  court.  Sub- 
sequently, he  was  required  to  have  his  authority  to  act 
reduced  to  writing  and  filed  in  the  court.  The  rules  have 
been  gradually  relaxed,  until  now  it  is  presumed,  in  all 
collateral  proceedings,  that  an  attorney  who  has  appeared 
for  a  litigant,  without  service  of  process,  had  authority  to 
act  for  the  person  whom  he  assumed  to  represent.'  The 
only  question  is,  whether,  in  collateral  proceedings,  this 
presumption  is  conclusive,  or  not.  There  are  many  au- 
thorities holding  it  to  be  indisputable,*  and  it  is  difficult 

publication.     The  law  permitted  ser-  17  Am.   St.   Rep.    19S;   Burr  v.  Sey- 

vice  to  be  made  by  publication  only  mour,  43  Minn.  401;  19  Am.  St.  Rep. 

where  certain  facts  were  made  to  ap-  245.     Tliese    cases   are,    however,    ir- 

pear  to  the  satisfaction  of  the  court,  reconcilable   with   expressions   to    be 

and  the  court   by  a  precedent  order,  found   in  the  opinion  of  the  court  ia 

which  must  necessarily  appear  of  rec-  Reinhart   v.    Lugo,    86   Cal.    395;    21 

ord,  authorized  service  to  be  made  by  Am.  St.  Rep.  52. 

publication.     But   the  record  showed  ^  Har.shey    v.   Blackmarr,   20   Iowa, 

no  such    order,   and    the   publication,  IGl;  89  Am.  Dec.  520;  Arnold  ?>.  Nye, 

therefore,  was  the  unauthorized  act  of  23  Mich.  286;  Martin  v.  Judd,  CO  111. 

the  party,  and  appeared  affirmatively  78;    Bunton  v.  Lyford,  37  N.  H.  512; 

to  be  invalid  and  ineffectual."  75  Am.  Dec.  144. 

«  Birber  v.  Morris,  37  Minn.  191;  5  *  Fitdd   v.  Gibl)s.   1  Pet.  C.  C.  155; 

Am    St    Rep.  8'Mi.  Biker  w.  StonebraUer's  AdmV,  .34  Mo. 

•■'Allison  V.  Thomas,  72  Cal.  502;  1  175;    Reed  v.  Pratt,  2  Hill,  G4;    Hoff- 

Am.    St.    Rep.    829;    Shenamio.ih    V.  mire  ?;.  Hoffmire,  3  Edw.  Ch.  174:  Am. 

R.  R.  Co.  V.  Ashl)y's  Trustees,  Sti  Va.  Ins.   Co.   v.  Oakh^y,   9    Paige,  490;   .38 

232;   19  Am.  St.  Rep.  891;  Newm-in's  Am.  Dec.  501;  Carpentier  j;.  Oakland, 

Estate,   75  Cal.   213;   7  Am.   St.  Rep.  30  Cal.  439;    Han-dton  v.  Writ'lit,   .37 

14li;  Fisk  v.  Reigeluian,  75  Wia.  499;  N.  Y.  502;  Browu  v.  Nichols,  42  N.  Y. 


§   129  VOID    JUDGMENTS.  228 

to  determine  whether  they  are  in  the  majority,  or  not; 
but  we  think  that  with  respect  to  cases  in  which  process 
has  not  been  served  in  any  mode,  and  jurisdiction  rests 
entirely  upon  the  appearance  of  an  attorney  on  behalf 
of  defendant,  the  rule  which  permits  him  to  collaterally 
avoid  the  judgment,  by  proving  that  such  appearance  was 
without  his  authority  or  knowledge,  is  gaining  adherents 
and  destined  to  obtain  the  ascendency.^  But  even  where 
the  authority  of  the  attorney  to  appear  is,  after  judgment, 
an  open  question,  and  the  judgment  is  liable  to  be  treated 
as  a  nullity  upon  showing  that  the  attorney  acted  without 
authority,  the  judgment  may  be  validated  by  a  subsequent 
recognition  of  the  attorney's  acts,  such,  for  instance,  as 
paying  him  for  his  services  in  the  action  in  which  the 
judgment  was  entered.^  Where  a  warrant  of  attorney  has 
been  given  to  confess  judgment,  and  the  plaintiff  engages 
an  attorney  to  act  under  such  warrant,  the  case  is  very 
different  from  that  of  an  ordinary  appearance.  If  the 
warrant  is  insufficient,  the  defendant  is  not  bound  by 
the  judgment.^ 

§  129.  Default. — The  record  may  show  that  the  judg- 
ment was  entered  by  the  clerk,  upon  the  default  of  the 
defendant.  The  clerk  has  no  judicial  functions.  The 
statute  directs  the  judgment.  The  clerk  acts  as  the  agent 
of  the  statute  in  writing  out  and  filing  its  judgment 
among  the  records  of  the  court.  If  the  law  did  not  au- 
thorize its  agent  to  act,  the  judgment   is  without  any 

26;    Wandling  v.  Straw,  25   W,  Va.  Am.  St.  Rep.  204;  Shelton  v.  Tiffin,  6 

692;  St.  Albans  v.  Bush,  4  Vt.  58;  23  How.  163;   Green  v.  Green,  42   Kaa. 

Am.    Dec.  246;  Newcomb  v.  Peck,   17  654;    16  Am.  St.  Rep.  510;   Reber  v. 

Vt.  302;  44  Am.  Dec.  .340;  Abbott  v.  Wright,  68  Pa.  St.  471;  Brinkman  v. 

Dutton,  44  Vt.  546;  «  Am.  Rep.  .394;  Sliatter,  23  Kan.  528.     In  New  York, 

Everett  v.   Warner  Bank,  58  N.   H.  though  an  appearance  by  an  attorney 

340.  cannot  be  questioned  collaterally,  the 

^  Barker  v.  Spencer,  61    Tex.    155;  defendant  is  permitted   to  show  that 

Kepley  i\  Irwin,  14  Neb.  300;   Hess  v.  the  alleged  appearance  was  a  forgery: 

Cole,   23   N.   J.   L.    125;    Reynolds    v.  Ferguson  v.  Crawford,  70  N.  Y."  253; 

Fleming,  30  Kan.   106;   46  Am.  Rep.  26  Am.  Rep.  589. 

86;  Bodurtha  v.  Goodrich,  3  Gray,  5U8;  ^  Ryan  v.  Doyle,  31  Iowa,  53. 

Shumway  v.   Stillman,   6  Wend.   453;  ^  Merchants'  etc.   Bank    v.  Boyd,  3 

15  Am.  Dec.  374;  Great  West  etc.  Co.  Denio,   257;    Merchants'  etc.  Bank  v, 

V.  Woodmaa  etc.  Co.,  12  Col.  46;    13  St.  John,  5  Hill,  497. 


229  VOID    JUDGMENTS.  §   130 

authority,  and  is  therefore  void.  Thus  where  several 
defendants  were  sued  upon  a  joint  liability,  and  a  portion 
summoned  to  answer  tlie  complaint,  tlie  clerk,  not  being 
so  authorized  by  law,  entered  judgment  by  default  against 
those  who  were  summoned,  and  in  default  the  judgment 
was  declared  to  be  void.^  Judgment  for  costs  entered  by 
the  clerk  in  the  absence  of  a  cost  bill  is  also  void.^  A 
judgment  by  default,  entered  within  the  time  prescribed 
for  the  defendant  to  appear  in  a  justice's  court,  is  void  in 
Missouri.^  The  service  of  notice  of  a  motion  to  dissolve 
an  attachment  on  account  of  irregularity,  made  by  the 
defendant's  attorney,  is  not  such  an  appearance  as  will 
support  a  judgment  by  default.*  If,  however,  in  a  case 
where  the  authority  of  a  clerk  to  enter  judgment  is  un- 
doubted, he  errs  in  the  performance  of  his  duty,  as  by 
making  the  entry  for  too  large  a  sum,  his  action  is  not 
void,  but  only  erroneous.^ 

§130.  Findings  of  Jurisdiction. — It  may  happen, 
when  that  part  of  the  record  containing  the  evidence  of 
service  shows  an  insufl&cient  service,  that  other  parts 
of  the  record,  and  especially  the  judgment,  disclose  the 
fact  that  the  matter  of  jurisdiction  has  been  considered 
and  determined  by  the  court.  The  conclusion  or  finding 
upon  this  subject  may  appear  by  recitals  stating  that  de- 
fendant has  been  cited  to  appear,  or  that  he  has  entered 
his  appearance,  or  that  his  default  for  not  appearing  has 
been  duly  entered.  These  findings  are  as  conclusive  upon 
the  parties,  in  all  collateral  proceedings,  as  any  adjudica- 
tion of  the  court  can  be.  It  must  be  presumed  that  they 
were  supported  by  sufficient  testimony,  not  set  forth  in 
the  record.  Thus  though  the  return  upon  a  summons 
against  A  B  certifies  a  service  of  such  summons  upon 
C  D,  and  the  judgment  states  that  A  B  has  been  sum- 

»  Kelly  V.  Van  Austin,  17  Cal.  5C4;  France  v.  Evans,  90  Mo.  74;  Williams 

Junkans  v.  Bergin,  Hi  Cal.  20.S.  v.  Bower,  20  Mo.  (iOl. 

«  Cliapin  V.  Broilnr,  16  Cal.  403.  *  Gliddea  v.  Packard,  28  Cal.  649. 

»  Howard    v.    Clark,    43    Mo.    344;  *  Boud  v.  Pacheco,  30  Cal.  630, 


§   130  VOID    JUDGMENTS.  230 

moned,  the  record  is  not  necessarily  contradictory.  The 
error  in  the  service  of  process  may  liave  been  corrected 
by  service  of  the  summons  on  the  proper  person.  And 
since  the  statement  to  this  effect  is  made  by  the  court,  it 
will  be  conclusively  presumed  that  it  acted  upon  ample 
evidence  and  with  due  deliberation  before  making  such 
statement;  and  the  judgment  will  be  impregnable  to  any 
collateral  assault.^  ■  A  finding  or  recital  showing  that  the 
court  had  jurisdiction  is,  in  the  vast  majority  of  the  states, 
not  disputable  when  a  judgment  based  thereon  is  drawn 
in  question  collaterally.^  The  same  rules  and  presump- 
tions attach  to  proceedings  in  a  court  of  general  jurisdic- 
tion in  California  to  enforce  the  payment  of  taxes  as  to 
proceedings  in  any  other  class  of  actions.  A  recital  in 
the  decree  "that  all  owners  and  claimants  of  the  property 
above  described  have  been  duly  summoned  to  answer  the 
complaint  herein,  and  have  made  default  in  that  behalf," 
is  sufhcient  to  bind  all  claimants  of  the  property  in  suit. 
The  fact  that  the  summons  as  served  by  publication 
omitted  the  name  of  one  of  the  defendants,  to  whom  the 
property  was  assessed,  is  not  fatal  to  the  decree;  because 
from  the  above  recital  it  must  be  presumed  that  the  court 
had  sufficient  proof  of  the  service  of  such  defendant, 
though  it  does  not  appear  in  the  judgment  roll.^  In  some 
of  the  cases  already  cited  in  this  section,  the  effect  of 
jurisdictional  findings  was  carried  to  its  utmost  limit,  and 
further,  perhaps,  than  is  justified  by  the  more  recent  ad- 
judications.    The  recital  in  the  judgment  of  the  due  ser- 

iHahnt).  Kelly,  34Cal.391;94  Am.  St.    Rep.    497;   Farmers'   Ins.    Co.  v. 

Dec.    742;   Qaivey   v.   Baker,  37   Cal.  Highsmith,  44  Iowa,  ,330;   E,hodes  v. 

465;   McCauley  v.  Fulton,  4  Pac.  L.  Gunn,  35  Ohio  St.  387;  Harris  v.  Mc- 

Rep.    170;    44   Cal.    355;    Dunham   v.  Clanahan,    11    Lea,    181;    Wilcher   v. 

Wilfong,  69  Mo.  355;  Blaisdell  v.  Pray,  Robertson,    78   Va.    602;   Dunham  v. 

68  Me.  269.  Wilfong,  69  Mo.  355;  Heck  v.  Martin, 

■'  Weir  V.  Monahan,  67   Miss.  434;  75  Tex.   669;    16    Am.  St.   Rep.    915; 

Hartman  v.   Ogborn,   54  Pa.   St.   120;  Schee    v.    La   Grange,  78    Iowa,    101; 

93  Am.  Dec.  679;  Hall  v.  Lowther,  22  Treadway  v.  Eastburn,  57  Tex.  209; 

W.  Va.  570;  Dufour  v.   Camfranc,    11  Edwards  t>.  Moore,  99  N.  C.  1;  Davis 

Mart.  607;  13  Am.  Dec.  360;  Goodwin  v.  Robinson,  70  Tex.  394;  Ex  parte  Ah 

V.  Sims,  86  Ala.  102;   11  Am.  St.  Rep.  Men,  77  Cal.  198;  11  Am.  St.  Rep.  263. 

21;  Moffittw.  Moffitt,  69111.  641;  Brick-  ^  p^gjiy   „,    Lancaster,   39    Cal.   354; 

house  V.  Sutton,  99  N.  C.   103;  6  Am.  Branson  v.  Caruthers,  49  Cal.  375. 


231  VOID    JUDGMENTS.  §   130 

vice  of  process  ought  unquestionably  to  prevail  over  any 
inference  to  be  drawn  from  the  fact  that  the  other  parts 
of  the  record  fail  to  show  when  or  in  what  manner  the 
process  was  served.^  Generally,  the  recital  of  jurisdiction 
or  of  service  of  process  contained  in  the  judgment  will  be 
construed  in  connection  with  the  whole  record,  and  will 
be  deemed  to  refer  to  the  kind  of  service  shown  by  the 
other  parts  of  the  record.  Hence  if  one  part  of  the  rec- 
ord shows  that  process  was  served  constructively,  as  by 
the  publication  thereof,  a  personal  service  will  not  be  pre- 
sumed, because  in  the  judgment  the  court  adjudges  "  that 
service  of  notice  has  been  made  upon  said  defendant,"^ 
especially  where  an  affidavit  is  found  among  the  papers 
on  file  showing  that  the  residence  of  the  defendant  was 
unknown,  and  could  not  be  ascertained.  In  Kansas,  "a 
finding  of  notice  is  at  best  but  prima  facie  evidence  of 
notice.  If  an  attempt  at  notice  appears  in  the  record,  the 
finding,  if  a  general  one,  refers  to  and  is  limited  by  such 
attempted  notice.  If  that  be  fatally  defective,  there  is  no 
presumption  of  notice  in  any  other  or  better  way.'"  In 
Illinois,  the  general  recital  or  finding  of  notice  or  of  service 
of  process  is,  as  we  understand  the  decisions  in  that  state, 
conclusive  as  against  any  evidence  not  contained  in  the 
record,*  but  is  disregarded  when  from  the  whole  record 
it  appears  to  be  untrue,  or  when  the  record  discloses  the 
evidence  upon  which  the  recital  was  based,  and  further, 
that  such  evidence  overthrows  rather  than  supports  the 
recital.® 

The  recitals  or  findings  of  jurisdiction  may  affirm,  in 
general  terms,  the  service,  or  due  service,  of  process,  with- 
out indicating  that  the  attention  of  the  court  has  been 
specially  called  to  the  kind  of  service  made,  or  that  it  has 

1  Rumfelt  V.  O'Brien,  57  Mo.   569;  Mnlvey  w.  Gibbons,  87  111.  307;  Barnett 

Bannon  v.  People,  1  111.  App.  496.  v.  Wolf,  70  111.  76;  Harris  v.  Lester, 

^  May  field    v.    Bennett,    48    Iowa,  80  111.  307. 

194.  "Barnett  v.   Wolf,  70  111.  76;  Scn- 

3  Mickel  V.  Hicks,    19  Kan.   578;  27  iehka  v.   Lowe,  74  111.  274;  Turner  v. 

Am.  Rep.  161.  Jenkins,  79  111.  228;  Bauuou  v.  People, 

*  Andrews  v.  Bernhardi,  87  111.  3G5;  1  111.  App.  49(i. 


§  131  VOID    JUDGMENTS.  232 

probal)!}^  based  its  finding  upon  other  evidence  than  that 
disclosed  by  the  record.  In  such  cases  it  is  not  reason- 
able that  the  general  statement  should  prevail  over  the 
evidence  contained  in  the  record.  It  should  rather  be 
construed  as  referring  to  and  founded  upon  it;  and  if  the 
service  shown  by  it  is  not  such  as  will  support  the  judg- 
ment, it  should  be  treated  as  void,  notwithstanding  the 
general  statement  in  the  judgment  that  process  has  been 
duly  served.^ 

§  131.  Jurisdictional  Inquiries  Confined  to  the  Rec- 
ord.—  We  have  hitherto  assumed  that  the  question  of 
the  jurisdiction  of  a  court  of  record  over  the  parties  to 
any  domestic  judgment  must,  in  all  collateral  proceedings, 
be  determined  by  the  record;  and  that  the  answer  to  this 
question  is  not,  except  in  some  direct  proceeding  insti- 
tuted against  the  judgment,  to  be  sought  from  any  extra- 
neous proof.  This  doctrine  seems  to  be  the  natural  and 
unavoidable  result  of  that  stamp  of  authenticity  which, 
from  the  earliest  times,  was  placed  upon  the  "record,'' 
and  which  gave  it  such  "uncontrollable  credit  and  verity 
that  no  plea,  proof,  or  averment  could  be  heard  to  the 
contrary."  Proceeding  undoubtedly  from  the  reliance 
which,  in  the  primitive  stages  of  practice,  was  placed  on 
the  official  memorials  of  the  proceedings  of  courts,  and 
supported  by  the  rule  that  the  best  evidence  ought  always 
to  be  heard,  to  the  exclusion  of  all  inferior  evidence,  this 
doctrine  has  received  the  indorsement  of  the  courts  of 
last  resort  in  more  than  a  majority  of  the  states  of  this 
Union.  The  principles  on  which  it  rests  are  clearly  and 
ably  stated  by  Gholson,  J.,  in  Callen  v.  Ellison,  13  Ohio  St. 
446,  82  Am.  Dec, 448,  in  the  following  language:  "When 
process  is  instituted,  —  when  on  a  demand  for  it  in  the 
prescribed  mode  the  process  of  the  court  is  issued,  —  the 
steps  taken  under  that  process  must  be  matter  proper  for 

'  Settlemier  v.  Sullivan,  97  U.  S.  v.  Cow,  83  Ind.  417;  Hobby «;.  Bunch, 
444;  Cheely  v.  Clayton,  110  U.  S.  708;  83  Ga.  1;20  Am.  St.  Rep.  301 ;  Adams  v. 
Cloud  V.  Pierce  (Jity,  8(5  Mo.  357;  Ooau     Cowles,  95  Mo.  501;  0  Am.  St.  Rep.  74. 


233  VOID    JUDGMENTS.  §  131 

the  consideration  of  the  court.  The  court  must  determine 
whether  the  suit  is  prosecuted;  whether  the  demand  for 
the  thing  to  which  a  right  is  asserted  is  continued.  So 
if  it  be  claimed  that  process  has  been  waived,  the  fact  of 
waiver,  or  the  authority  to  waive,  as  shown  by  tlie  evi- 
dence, must  be  decided  by  the  court.  This  determination 
or  decision  may  be  express  on  the  very  point,  as  by  an 
assertion  on  the  record  that  the  process  has  been  served, 
or  that  the  party  has  appeared  by  an  attorney,  or  it  may 
be  necessarily  implied  in  the  action  of  the  court  upon  the 
demand  of  the  party.  The  determination  or  decision 
that  a  party  has  been  served  with  process,  or  that  he  has 
given  authority  to  waive  process,  if  in  truth  he  has  not 
been  served  or  given  such  authority,  is  a  determination 
or  decision,  when  he  has  had  no  opportunity  to  be  heard. 
Hence  the  right  to  show,  in  opposition  to  the  record  of 
such  determination  or  decision,  the  truth  by  evidence  has 
been  claimed,  as  required  by  the  principles  of  natural 
justice.  If  the  court  act  at  all  upon  the  question  whether 
a  party  has  been  served  with  process,  or  has  authorized  an 
appearance  in  the  absence  of  such  party,  then  the  decision 
must  be  made  at  the  risk  of  an  incorrect  conclusion.  And 
it  would  be  absurd  to  require  notice  of  such  inquiry,  as 
that  would  involve  a  similar  inquiry  whether  there  was 
notice  of  that  notice.  The  court  must  act  upon  the  de- 
mand for  which  process  has  been  instituted,  either  with 
or  without  inquiry  into  the  fact  whether  such  process  had 
been  served.  That  there  should  be  no  inquiry  that  a 
judgment  by  default  should  be  rendered  without  inquiry 
into  the  fact  whether  the  process  has  been  served  on  the 
defendant,  cannot,  with  any  propriety,  be  claimed.  If, 
then,  the  inquiry  should  be  made,  wiiat  effect  is  to  be 
given  to  the  determination  or  decision?  Is  it  obligatory, 
unless  impeached  or  set  aside  in  the  mode  prescribed  as 
to  other  decisions  of  the  court  ?  or  may  it  be  disregarded 
as  null  and  void  whenever  brought  in  question  upon 
alleo-ation  and  proof  that  the  party  in  truth  had  no  notice 


g   131  VOID    JUDGMENTS.  234 

or  opportunity  to  be  heard?  Here  arises  a  conflict  be- 
tween principles  of  policy,  which  require  the  former  con- 
clusion, and  principles  of  natural  justice,  which  lead  to 
the  latter;  and  as  might  be  expected  in  cases  of  such 
conflict,  the  decisions  of  courts  have  differed.  As  to  the 
judgments  of  courts  of  general  jurisdiction,  the  decisions 
in  this  state,  though  perhaps  not  entirely  uniform  or 
consistent,  do  undoubtedly  show  a  strong  inclination 
to  sustain  such  judgments  against  indirect  or  collateral 
attacks  on  their  validity  and  effect.  It  appears  to  have 
been  thought  that  natural  justice  is  satisfied  when  no- 
tice is  required,  and  an  impartial  tribunal  established 
to  ascertain  and  determine  whether  it  has  been  given. 
Nor  can  it  properly  be  said  that  such  a  tribunal  has  juris- 
diction because  it  has  so  decided.  Its  decision  is  bind- 
ing because  it  w^as  authorized  to  make  it,  and  because 
public  policy,  and  the  respect  due  to  the  sovereignty  it 
represents,  at  least  in  tribunals  acting  under  the  same 
sovereignty,  require  that  the  decision  should  be  regarded, 
while  it  remains  on  the  record  unimpeached  and  unre- 
versed. In  the  case  of  Lessee  of  Fowler  v.  Whiteman,  2  Ohio 
St.  270,  it  is  said  to  have  'become  established  by  a  series  of 
decisions  in  Ohio  that  the  finding  of  a  court  of  general 
jurisdiction,  upon  a  subject-matter  properly  before  it,  can- 
not be  impeached.'  The  finding  in  that,  and  in  the  pre- 
vious cases  there  referred  to,  was  upon  the  question  of 
notice."  In  this  case  from  which  this  quotation  is  made  the 
records  stated  that  "defendants,  by  George  Collins,  Esq., 
their  attorney,  came  into  court,  and  by  virtue  of  his  power 
of  attorney  filed  in  this  court  confessed  judgment  for  the 
defendants,"  etc.  It  was  claimed  that  the  power  of  attor- 
ney found  among  the  records  did  not  appear  to  be  exe- 
cuted by  some  of  the  defendants,  and  that  other  of  the 
defendants  were  married  women,  incapable  of  executing 
such  power.  But  the  court  held  tliat  this  power,  though 
found  among  the  papers  in  the  ca-e,  was  no  part  of  the 
record;   that   the  object  of  filing  the  power  was  not  to 


235  VOID    JUDGMENTS.  §  131 

furnish  means  to  render  the  judgment  void,  "hut  to  fur- 
nish the  parties  affected  by  the  judgment  ready  means  to 
apply  to  the  court  itself  to  correct  any  irregularity  or  er- 
ror"; and  that  no  such  application  having  been  made,  the 
judgment  must  be  regarded  as  valid. 

The  rule  that  evidence  will  not  be  lieard  in  a  collateral 
proceeding,  for  the  purpose  of  avoiding  a  judgment,  is 
thus  defended  in  the  case  of  Coit  v.  Haven,  80  Conn.  199; 
79  Am.  Dec.  244:  "But  the  counsel  for  the  defendants 
urge  the  extreme  hardship  to  which  a  party  may  be  sub- 
jected, if  he  may  not  deny  and  disprove  the  service  of  the 
writ,  when   he  can  clearly  show  that  in   fact  no   service 
was  ever  made  on  him,  and  that  he  never  had  notice  of 
the  suit  in  any  form,  and  never  heard  of  the  judgment 
against  him  until  it  was  made  the  ground  of  an  action. 
They  say,  with  great  emphasis,  —  and  the  argument  is  cer- 
tainly a  forcible  one, —  Can  it  be  that  a  clerk  of  a  court  may 
fabricate  a  record,  or  an  officer  make  a  false  return  of 
service,  and  yet  there  be  no  escape  for  one  who  is  thus  by 
a  judgment  in  the  suit  made  heavily  indebted,  or  found 
guilty  of  a  wrong,  when  in  fact  he  is  perfectly  innocent, 
or  never  owed  the  debt,  and  could  show  it  clearly  if  he 
had  a  chance?     Will  a  court,  they  ask,  because  it  has  a 
general  jurisdiction,  protect    and   give  effect  to   such  a 
fraud?    It  will  not  be  denied,  and  has  not  been  on  the  argu- 
ment, that  when  a  court  has  jurisdiction  its  record  speaks 
absolute  verity,  because  it   is   the    record   of  the  court's 
doings;  and  being  a  court  of  final  jurisdiction,  there  must 
be  an  end  to  the  matter  in  dispute,  if  it  be  possible  to 
reach  that  end  at  all.     And  it  is  so  necessary  that  confi- 
dence should  be  reposed  in  courts  of  a  high  character,  as 
well  as  in  the  records  of  such  courts,  that  on  the  whole, 
and  in  view  of  all  the  considerations  affecting  the  subject, 
it  is  the  only  safe  rule  to  give  the  decisions  of  courts  of 
general  jurisdiction  full  effect  so  long  as  they  remain  in 
force,  rather  than  to  leave  them  open  to  be  attacked   in 
every  way  and  on  all  occasions.     Being  domestic  judg- 


§  132  VOID    JUDGMENTS,  286 

ments,  tLey  can,  if  erroneous,  be  reviewed  by  proceedings 
instituted  directly  for  the  purpose,  and  reversed  on  error, 
or  by  a  new  trial;  and  if  the  danger  is  imminent  and 
special,  relief  can  be  temporarily,  if  not  finally,  obtained 
by  application  to  a  court  of  equity.  Any  other  rule  with 
regard  to  judgments  of  such  courts  would  be  attended  in 
its  application  with  very  great  embarrassment,  and  would 
be  very  dangerous  in  its  general  operation.  The  general 
good  clearly  requires,  and  has  therefore  established  the 
rule,  that  domestic  judgments  of  courts  of  general  jurisdic- 
tion cannot  be  attacked  collaterally.'* 

If  the  record  of  a  domestic  court  of  general  jurisdiction 
declare  notice  to  have  been  given,  such  declaration  cannot 
be  contradicted  by  plea  or  proof,  because,  for  reasons  of 
public  policy,  the  records  of  such  courts  are  presumed  to 
speak  the  truth,  and  can  be  tried  only  by  inspection.^  "It 
is  not  to  be  denied  that  a  court  of  superior  jurisdiction 
may  so  make  a  record  in  a  case  where  in  fact  it  has  no 
jurisdiction  that  the  validity  of  the  judgment  cannot  be 
questioned  collaterally."^  The  fact  of  jurisdiction  appear- 
ing on  the  record,  it  cannot  be  controverted.  Any  other 
matter  determined  by  the  court  might  as  well  be  disputed 
as  this.'^ 

§  132.  Silence  of  the  Record.  —  A  large  proportion  of 
the  decisions  denying  the  right  to  collaterally  impeach  a 
judgment  or  decree  for  want  of  jurisdiction  over  the  party 
against  whom  the    determination   has   been  made   have 

'  Selin  V.  Snyder,  7  Serg.  &  R.  166;  v.    Lefevre,    58   Miss.    639;    Swift   v. 

Farr  v.  Ladd,  37  Vt.  156;  Eastman  v.  Meyers,  37  Fed.  Rep.  37;  Westerwelt 

Waterman,   26  Vt.  494;  Lyles  w.  Rob-  v.    Lewis,    2    McLean,    511;    Riley    v. 

in'jon,  1  Biil.  25;  Aultman  v.  McLean,  Waugh,  8  Cush.  2-20;  Borden  v.  State, 

27  Iowa,    129;  Penobscot  R.  R.  Co.  v.  11    Ark.    519;    Delaney    v.   Gault.    30 

Weeks,  52  Me.  456;  Hotchkiss  v.  Cut-  Pa.   St.    63;    Galpin  v.    Page,    1    Saw. 

ting,    14  Minn.   537;    Morgan  v.  Bur-  318;  Miller  zj.  Ewing,  8  Smedes  &  M. 

nett,  18  Ohio,  535;  Segee  v.  Thomas,  3  421;  Wright  v.   Weisinger,   5  Smedes 

Blatchf.    11;    Harman   v.    Moore,    112  &  M.  210;  Riggs  w.  Collins,  2  Biss.  268; 

Ind.  221.  Peyroux  v.  Peyroux,  24  La.  Ann.  175; 

*  Dequindre  v.  Williams,  31  Ind.  444.  McCreery    v.    Fortson,    35    Tex.    641. 

^  Pugh     V.     McCue,     86    Va.     475;  Probably  this  rule  does  not  prevail  in 

Starnes  v.  Hadnot,   42  La.   Ann.  360;  New  York:  Ferguson  v.  Crawford,  70 

People  V.  Harrison,  84  Cal.  607;  Rigby  N.  Y.  253;  26  Am.  Rep.  589. 


237  VOID    JUDGMENTS.  §  132 

been  pronounced  where  the  service  of  process  appeared 
distinctly  or  by  necessary  implication  upon  the  record. 
The  authorities,  however,  all  concede  that  the  mere  fact 
that  the  record  is  silent  respecting  the  existence  of  some 
jurisdictional  fact  cannot  create  the  presumption  that  such 
fact  did  not  exist.  On  the  contrary,  its  existence  will  be 
presumed.^  The  only  question  is,  whether  the  presump- 
tion may  be  overcome  by  extrinsic  evidence.  The  pre- 
ponderance of  the  decisions  upon  this  question  supports 
the  doctrine  that  "  it  is  a  matter  of  no  consequence 
whether  the  jurisdiction  of  the  court  affirmatively  appears 
upon  the  judgment  roll  or  not;  for  if  it  does  not,  it  will  be 
conclusively  presumed.'"^  In  a  recent  case  it  is  said: 
"  We  concur  fully  in  the  doctrine  of  the  numerous  cases 
cited  for  plaintiff,  where  it  is  held  that  a  domestic  judg- 
ment of  a  court  of  record  of  general  jurisdiction,  proceed- 
ing according  to  the  course  of  the  common  law,  cannot  be 
impeached  by  the  parties  to  it,  where  a  want  of  jurisdic- 
tion is  not  apparent  upon  the  record,  while  it  remains 
neither  annulled  nor  reversed."^  It  is  a  familiar  principle 
that  the  judgment  or  decree  of  a  court  of  general  jurisdic- 
tion cannot  be  collaterally  questioned,  except  for  want  of 
authority  over  the  matter  adjudicated  upon.^  Fraud  in 
procuring  a  judgment  cannot  be  shown  by  the  parties  to 

'  Pope  V.  Harrison,  16  Lea,  82;  Fer-  Mo.  309;  Williams  v.  Haynes,  77  Tex. 

guson  V.  Teel,  82  Va.  690;  Oavanaugh  283;  19  Am.  St.  Rep.  752:  Littleton  v. 

V.  Smith,   84  Ind.  380;  Nye  v.   Swan,  Smith,  119  Incl.  230;  Crim  v.  Kessing, 

42  Minn.  243;   Treat  v.  Maxwell,  82  89  Cal.  478;   Cassady  v.  Meller,    106 

Me.  76;  Clyburn  v.  Reynolds,  31  S.  C.  Ind.   69;  Wdkerson  v.    Schoonmaker, 

91;  Horner  v.  State  Bank,  1  Ind.  130:  77  Tex.  615;  19  Am.  St.  Rep.  803. 
48   Am.   Dec.  355;   Fogg   v.  Gibbs,  8         »  Pratt  w.  Dow,  56  Me,  81;  Granger 

Baxt.    464;    Acklen    v.    Goodman,    77  t.  Clark,  22  Me.  128;  Fitch  v.  Boyor, 

Ala,  521;  Evans  W.Young,  10  Col.  316;  8  Rep.    185;   Turrell  v.    Warren,    25 

3  Am.  St.  Rep.  583;  Luco  v.  Commer-  Minn.  9. 

cial    Bank,    70   Cal.    339;    Adams    v.         *  Yaple   v.  Titus,   41    Pa.    St.    202; 

Cowles,  95  Mo.  501;  6  Am,  St.  Rep.  Shawhan  v.  LofiFer,  24  Iowa,  217;  Cook 

74;     Benefield     v.     Albert,     132     111,  v.   Darling,    18  Pick.  393;  Stephenson 

g65_  V.  Newcomb,  5  Harr.  (Del.)  150;  Crafts 

2  Sharp  V.  Brunnings,  35  Cal.  528;  v.  Dexter,  8  Ala.  767;   42  Am.    Dec. 

Mitchell  >\  Meuley,  32  Tex.  4()0;  Hahn  666;  Cox  v.  Tliomas's  Adm'r,  9  Gratt. 

V.  Kelly,  .34  Cal.  391;  94  Am.  Dec.  742;  323;  Finneran  v.  Leonard,  7  Allen,  54; 

Lawler's  Heirs  v.  White,  27  Tex.  2.50;  83  Am.  Dec.  665;  Blythe  v.  Richards, 

Coit  V.  Haven,  30  Conn.   190;  79  Am.  10  Serg.  &  R.   260;  13  Am.  Dec.   672; 

Dec.    244;    McClauahan  v.  West,  100  Bragg  v.  Lorio,  1  Woods,  209. 


§  133  VOID    JUDGMENTS.  23S 

such  judgment,  in  any  collateral  proceeding.*  An  offer 
being  made  to  prove  that  the  defendant,  at  the  time  of 
entering  judgment,  was  but  two  years  old,  and  that  no  ser- 
vice of  process  had  been  made  upon  him,  the  court  said: 
"  The  record  in  this  case  is  not  silent.  It  recites  that  due 
notice  had  been  given.  This  is  a  finding  of  the  court,  and, 
being  shown  by  a  record  importing  absolute  verity,  can- 
not be  contradicted."^  An  action  was  commenced  against 
a  person  upon  judgment  rendered  for  costs  of  suit  in  a 
case  wherein  he  was  plaintiff.  He  offered  to  prove  that 
he  did  not  authorize  the  act  of  the  attorney  who  instituted 
the  former  suit.  It  was  held  that  while  the  judgment  re- 
mained of  record  he  was  bound  by  it,  and  could  only  be 
relieved  by  some  direct  application.^  If  the  judgment  or 
decree  is  silent  upon  the  subject  of  the  service  of  sum- 
mons, and  the  service  shown  by  the  return  upon  the  sum- 
mons is  not  such  as  will  give  the  court  jurisdiction,  no 
doubt  the  judgment  is  void.*  This,  however,  does  not 
present  a  case  wherein  the  record  is  silent,  but  rather 
illustrates  the  proposition  that  while  one  part  of  the  rec- 
ord is  silent  another  part  may  bear  witness  to  a  jurisdic- 
tional infirmity,  destructive  of  the  life  and  validity  of  the 
judgment. 

§  133.  Cases  Admitting  Parol  Evidence.  — Other  courts, 
however,  have  been  deeply  impressed  by  the  apparent 
violation  of  natural  justice  involved  in  condemning  a 
party  who  has  had  no  opportunity  of  presenting  his  de- 
fense,—  no  notice  that  any  of  his  rights  or  interests  were 
in  jeopardy.  Yielding,  through  a  tenderness  for  the  spe- 
cial and  unavoidable  injustice  occasionally  done  to  liti- 
gants, they  have,  in  a  measure,  overlooked  the  interest  of 
the  community  as  a  whole;  and  rather  than  sacrifice  the 

1  Carpentier  v.  Oakland,  :?0  Cal.  4H9;  ^  V^^ard  v.  Barber,  1  E.  D.  Smith, 
Smith  ?>.  Smith,  22  Iowa,  516;  People  423;  St.  Alhaiis  r.  Bush,  4  Vt.  58; 
V.  Downing,  4  Sand.  189;  Blauchard  ?;.  2.3  Am.  Dec.  246:  Finneran  i\  Leon- 
Webster,  62  N.  H   467.  ard,  7  Allen,  54;  S3  Am.  Dec.  665. 

'Richards    v.    Skiff,     8     Ohio     St.  *  Swearengen  v.  Gulick,  67  111.  208; 

5S6.  Baunon  v.  People,  1  111.  App.  496. 


239  VOID    JUDGMENTS.  §  133 

individual  for  the  safety  of  the  community,  they  have 
jeopardized  the  best  interests  of  the  community  to  secure 
the  safety  of  the  individuah  To  the  end  that  each  citizen 
may  feel  assured  that  no  injury  can  be  done  him  in  the 
courts  without  his  notice,  actual  or  constructive,  they 
have  impaired  public  confidence  in  judicial  authority; 
they  have  made  the  title  to  a  large  class  of  property  pre- 
carious and  unstable,  by  taking  away  the  uncontrollable 
verit}'  of  the  record,  and  substituting  for  it  the  intermina- 
ble uncertainties  of  parol  evidence;  and  instead  of  allow- 
ing parties  who  have  acquired  title  at  judicial  sales  to  rest 
secure  in  the  presumption  that  courts  of  record  always 
"  act  by  right,"  those  parties  have  been  required,  often 
without  notice  of  the  intended  attack,  to  defend  proceed- 
ings occurring  many  years  previous,  and  apparently  free 
from  vice  or  infirmity. 

The  principles  which  it  is  thought  are  sufficient  to  sup- 
port the  practice  of  leaving  the  question  of  jurisdiction 
over  the  parties  always  open  to  dispute  on  collateral  pro- 
ceedings are,  that  the  high  and  uncontrollable  verity  of 
the  record  never  attaches  until  the  court  has  obtained 
jurisdiction  of  the  person  of  the  defendant,  as  well  as  of 
the  subject-matter  of  the  action;  that  in  the  absence  of 
the  fact  of  jurisdiction  over  the  parties,  there  is  no  power 
competent  to  make  a  record;  that  the  thing  offered  as  a 
record  may  be  nothing  but  an  unauthorized  paper;  that 
the  law  contemplates,  upon  reasons  of  natural  justice,  that 
no  man  shall  be  deprived  of  any  of  his  rights  of  person  or 
property  without  an  opportunity  of  being  heard;  that 
whenever  the  judgment  of  any  tribunal  is  about  to  be 
used  in  any  proceeding,  whether  direct  or  collateral,  it  is 
incumbent  on  the  court  wherein  it  is  ojffered  to  inquire 
into  the  jurisdiction  of  the  court  rendering  the  judg- 
ment;  and  that  no  court  can  bring  a  party  within  its 
power   by  virtue  of  false  findings    and    recitals.*     It   is 

iGoiuly?..  Hall,  30  111.  109;  Web-  win  v.  Kiminel,  16  Al)b.  Pr.  353;  1 
ster  V.  Rei<l,  11  How.  437;  Gwiii  r.  Roh.  (N.  Y.)  109;  Job u son  v.  VVrigbt, 
McCarroU,  1  Siuedes  &  M.  351;  Bald-     27  Ga.  55 j. 


I  133  VOID    JUDGMENTS.  240 

worthy  of  consideration  that  in  the  greater  number  of 
cases  usually  cited  as  authority  for  collateral  attacks  the 
lano-uage  used  by  the  court,  though  sufficiently  general  to 
apply  to  domestic  judgments  of  courts  of  general  jurisdic- 
tion, valid  on  their  face,  was  employed  in  determining 
the  effect  of  judgments  either  of  a  sister  state,  or  of  a 
court  of  limited  jurisdiction,  or  of  a  court  whose  want  of 
jurisdiction  appeared  upon  the  record.  The  opinion  of 
Judge  Marcy  in  Starbuck  v.  Murray,  5  Wend.  148,  21  Am. 
Dec.  172,  is  frequently  cited  to  show  that  want  of  jurisdic- 
tion over  the  defendant  may  always  be  proven.  He,  in 
deciding  whether  such  proof  should  be  received  against  a 
record  made  in  another  state,  said:  "But  it  is  strenuously 
contended  that  if  other  matter  may  be  pleaded  by  the  de- 
fendant, he  is  estopped  from  asserting  anything  against 
the  allegation  contained  in  the  record.  It  imports  perfect 
verity,  it  is  said,  and  the  parties  to  it  cannot  be  heard  to 
impeach  it.  It  appears  to  me  that  this  proposition  as- 
sumes the  very  fact  to  be  established,  which  is  the  only 
question  in  issue.  For  what  purpose  does  the  defendant 
question  the  jurisdiction  of  the  court?  Solely  to  show 
that  its  proceedings  and  judgments  are  void,  and  there- 
fore the  supposed  record  is  not  in  truth  a  record.  If  the 
defendant  had  not  proper  notice  of  and  did  not  appear  to 
the  original  action,  all  the  state  courts,  with  one  excep- 
tion, agree  in  opinion  that  the  paper  introduced  as  to  him 
is  no  record;  but  if  he  cannot  show,  e\en  against  the  pre- 
tended record,  that  fact,  on  the  alleged  ground  of  the 
uncontrollable  verity  of  the  record,  he  is  deprived  of  his 
defense  by  a  process  of  reasoning  that  is,  to  my  mind, 
little  less  than  sophistry.  The  plaintiffs,  in  effect,  declare 
to  the  defendant,  the  paper  declared  on  is  a  record,  be- 
cause it  says  you  appeared,  and  you  appeared  because  the 
paper  is  a  record.  This  is  reasoning  in  a  circle.  The 
appearance  makes  the  record  uncontrollable  verity,  and 
the  record  makes  the  appearance  an  unimpeachable  fact. 
The  fact  which  the  defendant  puts  in  issue  is  the  validity 


241  VOID    JUDGMENTS.  §  133 

of  the  record,  and  yet  it  is  contended  that  he  is  estopped 
by  the  unimpeachable  credit  of  that  very  record  from  dis- 
proving any  one  allegation  contained  in  it.  Unless  a 
court  has  jurisdiction,  it  can  never  make  a  record  which 
imports  uncontrollable  verity  to  the  party  over  whom  it 
has  usurped  jurisdiction,  and  he  ought  not  therefore  to  be 
estopped,  by  any  allegation  in  that  record,  from  proving 
any  fact  that  goes  to  establish  the  truth  of  a  plea  alleging 
a  want  of  jurisdiction.  So  long  as  the  question  of  jurisdic- 
tion is  in  issue,  the  judgment  of  a  court  of  another  state 
is  in  its  effect  like  a  foreign  judgment;  it  is  'prima  facie 
evidence;  but  for  all  the  purposes  of  sustaining  that  issue, 
it  is  examinable  into  the  same  extent  as  a  judgment  ren- 
dered by  a  foreign  court.  If  the  jurisdiction  of  the  court 
4s  not  impeached,  it  has  the  character  of  a  record,  and 
for  all  purposes  should  receive  full  faith  and  credit."  The 
language  of  this  opinion,  though  general  in  terms,  was 
used  in  relation  to  the  judgment  of  a  court  of  another 
state,  and  therefore,  so  far  as  it  reflects  upon  other  judg- 
ments, is  a  mere  dictum.  A  number  of  other  cases  in  the 
same  state  and  elsewhere  are,  like  the  one  just  cited, 
sound  and  undoubted  as  to  the  points  necessarily  involved; 
but  as  to  reflections  upon  domestic  judgments  of  courts  of 
record,  are  mere  dicta} 

1  Borden  v.  Fitch,  15  Johns.  140;  S  Kan.  458;  27  Am.  Rep.  149;  reported 
Am.  Dec.  225;  Pollard  v.  Wegener,  lo  as  Mastin  v.  Duncan,  6  Cent.  L.  J.  328. 
Wis.  569;  Bloom  v.  Burdick,  1  Hill,  In  this  last  case  the  court  permitted 
130;  37  Am.  Dec.  299;  Rape  v.  Heaton,  the  return  of  service  of  summons  made 
9  Wis.  328^  76  Am.  Dec.  269;  Pendle-  by  a  constable  to  be  controverted  in 
ton  w.  Wee'd,  17  N.  Y.  72;  Steen  v.  an  action  of  ejectment  where  the  judg- 
Steen",  25  Miss.  513;  Chemung  Canal  ment  founded  on  such  return  was  col- 
Bank 'v.  Judson,  8  N.  Y.  254;  Edwards  laterally  drawn  in  question.  The  most 
V.  Tooiiier,  14  Smedes  &  M.  80;  Noyes  candid  and  comprehensive  review  of 
V.  Butler,' 6  Barb.  613;  Fitzhugh  v.  this  question  which  has  come  within 
Custer  4' Tex.  399;  51  Am.  Dec.  728;  our  observation  is  that  contained  in 
Hard  v.  Shipman,  6  Barb.  621;  Stal-  the  opinion  of  Rapallo,  J.,  in  Fergu- 
lings  V.  Galley,  3  Jones,  345;  Corwin  son  v.  Crawford,  70  N.  Y.  253;  26 
V.  Merritt,  3  Barb.  341;  Elliott  v.  Am.  Rep.  589.  That  case  was  an 
Piersol,  1  Pet.  340;  Dobson  v.  Pearce,  action  brought  to  foreclose  a  mort- 
12  N.  Y.  156;  62  Am.  Dec.  152;  Smith  gage.  The  defense  interposed  was, 
V.  Po'meroy,  2  Dill.  414;  McCauley  v.  that  the  plaintiff's  rights  had  been 
Hargrove3,'48  Ga.  50;  15  Am.  Rep.  barred  by  a  judgment  foreclosing  a 
660;  Pennywit  v.  Foote,  27  Ohio  St.  prior  mortgage.  On  the  trial  the 
600;  22  Am.  Rep.  340;  Spier  v.  Corll,  judgment  roll  in  the  former  case  was 
33  Ohio  St.  236;  Mastin  v.  Gray,  19  put  iu  evidence.  It  contained  a  no- 
JupQ.  I. —16 


133 


VOID   JUDGMENTS. 


242 


The  rule  that  a  judgment  of  a  court  of  general  jurisdic- 
tion, whether  the  record  shows  jurisdiction  affirmatively 


tice  of  appearance  for  the  present 
plaintiff,  purporting  to  be  signed  by 
one  Mills  as  his  attorney,  and  also  a 
consent  to  judgment  signed  on  behalf 
of  plaintiff  by  the  same  attorney. 
The  judgment  also  recited  that  sum- 
mons had  been  served  on  the  defend- 
ants, and  that  none  of  them  had 
appeared  except  the  present  plaintiff, 
by  John  W.  Mills,  his  attorney.  The 
plaintiff  then  called  Mills  as  a  wit- 
ness, and  offered  to  prove  by  him,  —  1. 
That  Mills's  signature  to  the  consent  to 
judgment  and  notice  of  appearance 
was  forged;  2.  That  Mills  was  never 
authorized  to  appear  for  plaintiff;  and 
3.   That  he  never  did  appear. 

The  learned  judge  first  disposed  of 
the  objection  that  the  evidence  could 
not  be  received  without  overruling 
Brown  v.  Nichols,  42  N.  Y.  26.  That 
case,  he  said,  was  authority  for  the 
position  that  when  an  attorney  had 
appeared,  his  want  of  authority  to  do 
so  could  not  be  shown  on  a  collateral 
attack;  but  here  the  offer  was  to  show, 
not  only  that  the  attorney  had  no  au- 
thority, but  further,  that  he  did  not 
in  fact  appear,  and  that  his  supposed 
signature  was  a  forgery.  His  honor 
then  proceeded:  "The  only  difBculty 
in  the  case  arises  upon  the  objection 
that  the  evidence  offered  tends  to 
contrarlict  the  record,  and  from  the 
adjudications  which  attach  to  the 
judgment  of  a  court  of  general  juris- 
diction, a  conclusive  presumption  of 
jurisdiction  over  the  parties,  which 
cannot  be  contradicted  except  by 
matter  appearing  on  the  face  of  the 
record  itself. 

"  After  considerable  research  I  have 
been  unable  to  find  a  single  authorita- 
tive adjudication,  in  this  or  any  other 
state,  deciding  that  in  the  case  of  a 
domestic  judgment  of  a  court  of  gen- 
eral jurisdiction,  want  of  jurisdiction 
over  the  person  may  be  shown  by  ex- 
trinsic evidence,  while  there  are  a 
great  number  of  adjudications  in  neigh- 
boring states  holding  that,  in  the  case 
of  such  judgments,  parties  and  privies 
are  estopped  in  collateral  actions  to 
deny  the  jurisdiction  of  the  court 
over  the  person  as  well  as  the  subject- 
matter,  unless  it  appear  on  the  face 
of  the  record  that   the  court  had  not 


acquired  jurisdiction,  and  that  in 
such  cases  there  is  a  conclusive  pre- 
sumption of  law  that  jurisdiction  was 
acquired  by  service  of  process  or  the 
appearance  of  the  party.  The  cases 
are  very  numerous,  but  the  citation 
of  a  few  of  them  will  suffice. 

"In  Cooke  v.  Darling,  18  Pick.  393, 
in  an  action  of  debt  on  a  domestic 
judgment,  the  defendant  pleaded  that 
at  the  time  of  the  supposed  service 
upon  him  of  the  writ  in  the  original 
action  he  was  not  an  inhabitant  of 
the  state  of  Massachusetts;  that  he 
had  no  notice  of  the  action,  and  did 
not  appear  therein. 

"This  plea  was  held  bad  on  de- 
murrer, on  the  ground  that  the  judg- 
ment could  not  be  impeached  collat- 
erally. In  Granger  v.  Clark,  22  Me. 
128,  also  an  action  on  a  judgment, ' 
the  plea  was  the  same,  with  the  addi- 
tion that  the  judgment  had  been  ob- 
tained by  fraud;  but  it  was  held  to 
constitute  no  defense.  Coit  v.  Haven, 
30  Conn.  190,  79  Am.  Dec.  244,  was 
a  scire  facias  on  a  Jlidgment,  and  the 
defendant  pleaded  that  the  writ  in 
the  original  action  was  never  served 
upon  him,  etc.;  and  the  court  held, 
in  an  elaborate  opinion,  that  a  judg- 
ment of  a  domestic  court  of  general 
jurisdiction  could  not  be  attacked 
collaterally,  unless  the  want  of  juris- 
diction appeared  on  the  face  of  the 
record,  and  that  jurisdictional  facts, 
such  as  the  service  of  the  writ,  and  the 
like,  were  conclusively  presumed  in 
favor  of  such  a  judgment,  unless  the 
record  showed  the  contrary,  although 
this  rule  did  not  apply  to  foreign 
judgments,  or  judgments  of  the  courts 
of  sister  states,  or  to  domestic  jiidg- 
ments  of  inferior  courts,  and  that  the 
only  remedy  in  such  a  case  was  by 
writ  of  error  or  application  to  a  court 
of  equity.  The  same  rule  is  held  in 
Penobscot  K  R.  jCo.  v.  Weeks,  52  Me. 
456;  Wingate  v.  Haywood,  40  N.  H. 
437;  Clarke  v.  Bryan,  16  Md.  171; 
Callen  v.  Ellison,  13  Ohio  St.  446;  82 
Am.  Dec.  448;  Horner  v.  Doe,  1  Ind. 
131;  48  Am.  Dec.  355;  Wright  v. 
Marsh,  2  Iowa,  94;  Prince  v.  Griffin, 
16  Iowa,  552;  and  in  numerous  other 
cases  which  are  referred  to  in  the  case 
of  Hahn  v.  Kelly,  34  CaL  391,  94  Am. 


243 


VOID   JUDGMENTS. 


§133 


or  is  silent  upon  that  subject,  is  not  subject  to  collateral 
attack  based  upon  extrinsic  evidence  showing  want  of 


Dec.  742,  which  adopts  the  same  rule 
and  contains  a  full  and .  instructive 
discussion  of  the  question. 

"There  are  many  cases  in  other 
states,  and  in  the  courts  of  the  United 
States,  containing  expressions  general 
in  their  character,  which  would  seem 
to  sanction  the  doctrine  that  a  want  of 
jurisdiction  over  the  person  or  subject- 
•matter  may  in  all  cases  be  shown  by 
extrinsic  evidence,  and  they  are  some- 
times cited  as  authorities  to  that 
effect:  Elliott  v.  Piersol,  1  Pet.  340; 
Hollingsworth  v.  Barbour,  4  Pet.  466; 
Hickey  v.  Stewart,  3  How.  750; 
Shriver  v.  Lynn,  2  How.  43;  William- 
son V.  Berry,  8  How.  495;  Williamson 
V.  Ball,  8  How.  566;  Gwin  v.  McCar- 
roU,  8  Smedes  &  M.  351;  Enos  v. 
Smith,  7  Smedes  &  M.  85;  Campbell  v. 
Brown,  6  How.  (Miss.)  106;  Shaefer 
V.  Gates,  2  B.  Mon.  453;  38  Am.  Dec. 
164;  Wilcox  v.  Jackson,  13  Pet.  498; 
Miller  v.  Ewing,  8  Smedes  &  M.  421; 
and  numerous  other  cases  not  cited. 
But  an  examination  of  these  cases 
discloses  that  they  all  relate  either 
to  judgments  of  inferior  courts,  or 
courts  of  limited  jurisdiction  or  courts 
of  general  jurisdiction  acting  in  the 
exercise  of  special  statvitory  powers, 
which  proceedings  stand  on  the  same 
footing  with  those  of  courts  of  limited 
and  inferior  jurisdiction  (3N.  Y.  511), 
or  courts  of  sister  states,  or  to  cases 
where  the  want  of  jurisdiction  ap- 
peared on  the  face  of  the  record,  or  to 
cases  of  direct  proceedings  to  reverse 
or  set  aside  the  judgment.  I  have  not 
found  one  which  adjudicated  the  point 
now  under  consideration,  otherwise 
than  those  to  which  I  have  referred. 
There  are  some  cases  which  hold  that 
the  want  of  authority  of  an  attorney  to 
appear  may  be  shown  by  extrinsic  evi- 
dence, although  the  record  states  that 
an  attorney  appeared  for  the  party, 
but  those  are  placed  expressly  on  the 
ground  that  such  evidence  does  not 
contradict  the  record:  Bodurtha  v. 
Goodrich,  3  Gray,  508;  Shelton  v. 
Tiffin,  6  How.  186;  14  How.  340. 
Those  cases  are,  however,  in  conflict 
with  the  decision  of  this  court  in 
Brown  v.  Nichols,  42  N.  Y.  26,  and 
in  many  other  cases. 

•'The  learned  annotators  of  Smith's 


Leading  Cases,  Hare  and  Wallace  (1 
Smith's  Lead.  Cas.,  marg.  p.  842),  sum 
the  matter  up  by  saying:  'Whatever 
the  rule  may  be  where  the  record  is 
silent,  it  would  seem  clearly  and  con- 
clusively established  by  a  weight  of 
authority  too  great  for  opposition,  un- 
less on  the  ground  of  local  and  peculiar 
law,  that  no  one  can  contradict  that 
which  the  record  actually  avers,  and 
that  a  recital  of  notice  or  appearance, 
or  a  return  of  service  by  the  sheriff 
in  the  record  of  a  domestic  court  of 
general  jurisdiction,  is  absolutely  con- 
clusive, and  cannot  be  disproved  by 
extrinsic  evidence.' 

"It  is  quite  remarkable,  however, 
that  notwithstanding  the  formidable 
array  of  authority  in  its  favor,  the 
courts  of  this  state  have  never  sus- 
tained this  doctrine  by  any  adjudica- 
tion, but,  on  the  contrary,  the  great 
weight  of  judicial  opinion,  and  the 
views  of  some  of  our  most  distinguished 
jurists,  are  directly  opposed  to  it. 

"As  has  been  already  stated,  our 
courts  have  settled  by  adjudication,  in 
regard  to  judgments  of  sister  states, 
that  the  question  of  jurisdiction  may 
be  inquired  into,  and  a  want  of  juris- 
diction over  the  person  shown  by  evi- 
dence, and  have  further  decided  (in 
opposition  to  the  holding  of  courts 
of  some  of  the  other  states)  that 
this  may  be  done  even  if  it  involves 
the  contradiction  of  a  recital  in  the 
judgment  record.  In  stating  the  rea- 
sons for  this  conclusion,  our  courts 
have  founded  it  on  general  principles, 
quite  as  applicable  to  domestic  judg- 
ments as  to  others,  and,  save  in  one 
case  (Kerr  v.  Kerr,  41  N.  Y.  272), 
have  in  their  opinions  made  no  dis- 
crimination between  them:  Borden  v. 
Fitch,  15  Johns.  121;  8  Am.  Dec.  225; 
Starbuck  v.  Murray,  5  Wend.  148;  21 
Am.  Dec.  172;  Noyest?.  Butler,  6  Barb. 
613,  and  cases  cited. 

"When  we  come  to  consider  the 
effect  of  these  authorities,  it  is  difficult 
to  find  any  solid  ground  upon  which 
to  rest  a  distinction  between  domestic 
judgments  and  judgments  of  sister 
states  in  regard  to  this  question;  for 
under  the  provisions  of  the  constitu- 
tion of  the  United  States,  wliich  re- 
quire that  full  faith  and  credit  shall 


133 


VOID    JUDGMENTS. 


244 


jurisdiction,  is  supported  by  as  great  a  preponderance  of 
authority  as    is    ever  likely  to    support  any  proposition 


be  given  in  each  state  to  the  public 
acts,  records,  and  judicial  proceedings 
of  every  other  state,  it  is  now  well 
settled  that  when  a  judgment  of  a 
court  of  a  sister  state  is  duly  proved 
in  a  court  of  this  state,  it  is  entitled 
here  to  all  the  effect  to  which  it  is  en- 
titled in  the  courts  of  the  state  where 
rendered.  If  conclusive  there,  it  is 
equally  conclusive  in  all  the  states  of 
the  Union;  and  whatever  pleas  would 
be  good  to  a  suit  therein  in  the  state 
where  rendered,  and  none  others,  can 
be  pleaded  in  any  court  in  the  United 
States:  Hampton  v.  McConnel,  3 
Wheat.  234;  Story's  Commentaries  on 
the  Constitution,  sec.  183;  Mills  v. 
Duryee,  7  Cranch,  481. 

"In  holding,  therefore,  that  a  de- 
fense that  the  party  was  not  served 
and  did  not  appear,  although  the  rec- 
ord stated  that  he  did,  was  good,  our 
courts  must  have  held  that  such  is  the 
law  of  this  state  and  the  common  law, 
and  consequently  that  in  the  absence 
of  proof  of  any  special  law  to  the  con- 
trary in  the  state  where  the  judgment 
was  rendered,  it  must  be  presumed  to 
be  also  the  law  of  that  state.  The 
judgments  of  our  courts  can  stand  on 
no  other  logical  basis.  The  distinction 
which  is  made  in  almost  all  the  other 
states  of  the  Union  between  the  effect 
of  domestic  judgments  and  judgments 
of  sister  states,  in  regard  to  the  con- 
clusiveness of  the  presumption  of 
jurisdiction  over  the  person,  is  sought 
to  be  explafhed  by  saying  that  in  re- 
gard to  domestic  judgments  the  party 
aggrieved  can  obtain  relief  by  applica- 
tion to  the  court  in  which  the  judg- 
ment was  rendered,  or  by  writ  of 
error,  whereas  in  the  case  of  a  judg- 
ment rendered  against  him  in  another 
state  he  would  be  obliged  to  go  into  a 
foreign  jurisdiction  for  redress,  which 
would  be  a  manifestly  inadequate  pro- 
tection, and  therefore  the  constitution 
may  be  construed  so  as  to  apply  only 
where  the  persons  affected  by  the 
judgment  were  within  the  operation 
of  the  proceeding.  This  explanation, 
however,  does  not  remove  the  difficulty 
in  making  the  distinction,  for  if  there 
is  a  conclusive  presumption  that  there 
■was  jurisdiction,  that  presumption 
must  exist  in  one  case  as  well  as  in  the 


other.  The  question  whether  or  not 
the  party  is  estopped  cannot  be  made 
to  depend  upon  the  greater  inconve- 
nience of  getting  rid  of  the  estoppel  in 
one  case  than  in  another. 

"But  aside  from  this  observation  as 
to  the  effect  of  the  authorities,  an  ex- 
amination of  them  shows  that  our 
courts  did  in  fact  proceed  upon  a 
ground  common  to  both  classes  of 
judgments.  The  reasons  are  fully 
stated  in  the  case  of  Starbuck  v.  Mur- 
ray, 5  Wend.  148;  21  Am.  Dec.  172. 
In  that  case,  which  was  an  action 
upon  a  Massachusetts  judgment,  the 
defendant  pleaded  that  no  process  was 
served  on  him  in  the  suit  in  which  the 
judgment  sued  on  was  rendered,  and 
that  he  never  appeared  therein  in  per- 
son or  by  attorney,  and  this  plea  was 
held  good,  notwithstanding  that  the 
record  of  the  judgment  stated  that  the 
defendant  appeared  to  the  suit.  Marcy, 
J.,  in  delivering  the  opinion  of  the 
court,  and  referring  to  the  argument 
that  the  defendant  was  estopped  from 
asserting  anything  against  the  allega- 
tion of  his  appearance  contained  in  the 
record,  says."  The  judge  here  quoted 
that  part  of  the  opinion  of  Judge 
Marcy  quoted  a7ite,  section  133,  and 
then  proceeded  as  follows:  — 

"This  is  but  an  amplification  of 
what  is  sometimes  more  briefly  ex- 
pressed in  the  books,  that  where  the 
defense  goes  to  defeat  the  record,  there 
is  no  estoppel.  That  the  reasoning  of 
Marcy,  J.,  is  applicable  to  domestic 
judgments  is  also  the  opinion  of  the 
learned  annotators  to  Phillipps  on  Evi- 
dence: Cowen  and  Hill's  Notes,  1st 
ed.,  p.  801,  note  551.  Referring  to 
the  opinion  of  Marcy,  J.,  before  cited, 
they  say:  'The  same  may  be  said  re- 
specting any  judgment,  sentence,  or 
decree.  A  want  of  jurisdiction  in  the 
court  pronouncing  it  may  always  be 
set  up  when  it  is  sought  to  be  enforced, 
or  when  any  benefit  is  claimed  under 
it;  and  the  principle  which  ordinarily 
forbids  the  impeachment  or  contradic- 
tion of  a  record  has  no  sort  of  applica- 
tion to  the  case.'  The  dicta  of  our 
judges  are  all  to  the  same  effect,  al- 
though the  precise  case  does  not  seem 
to  have  arisen.  In  Bigelow  ?'.  Steai-ns, 
19  Johns.  41,  10  Am.l)ec.   189,  Spen- 


245 


VOID    JUDGMENTS. 


133 


equally  debatable,  and  it  must  gain  strength  and  adher- 
ents  unless  the  national  courts   shall  finally   determine 


cer,  C  J.,  laid  down  the  broad  rule 
that  if  a  court,  whether  of  limited 
jurisdiction  or  not,  undertakes  to  hold 
cognizance  of  a  cause  without  having 
gained  jurisdiction  of  the  person  by 
having  him  before  them  in  the  manner 
required  by  law,  the  proceedings  are 
void.  In  Latham  7\  Edgerton,  9  Cow. 
227,  Sutherland,  J.,  in  regard  to  a 
juilgment  of  a  court  of  common  pleas, 
says:  'The  principle  that  a  record  can- 
not be  impeached  by  pleading  is  not 
applicable  to  a  case  like  this.  The 
want  of  jurisdiction  is  a  matter  that 
may  always  be  set  up  against  a  judg- 
ment when  sought  to  be  enforced  or 
where  any  benefit  is  claimed  under  it.' 
Citing  Mills  V.  Martin,  19  Johns.  33, 
he  also  says  (p.  229):  'The  plaintiflF 
below  might  have  applied  to  the  court 
to  set  aside  their  proceedings,  but  he 
was  not  bound  to  do  so.  He  had  a 
right  to  lie  by  until  the  judgment  was 
set  up  against  him,  and  then  to  show 
that  the  proceedings  were  void  for 
want  of  jurisdiction.'  In  Davis  v. 
Packard,  6  Wend.  327,  332,  in  the 
court  of  errors,  the  chancellor,  speak- 
ing of  domestic  judgments,  says:  'If 
the  jurisdiction  of  the  court  is  general 
or  unlimited  both  as  to  parties  and 
subject-matter,  it  will  be  presumed  to 
have  had  jurisdiction  of  the  cause, 
unless  it  appears  affirmatively  from 
the  record,  or  by  the  shoiving  of  the 
party  denying  the  jurisdiction  of  the 
court,  that  some  special  circumstances 
existed  to  oust  the  court  of  its  juris- 
diction in  that  particular  case.'  In 
Bloom  r.  Burdick,  1  Hill,  130,  37  Am. 
Dec.  299,  Bronson,  J.,  says:  'The  dis- 
tinction between  superior  and  inferior 
courts  is  not  of  much  importance  in 
this  particular  case,  for  whenever  it 
appears  that  there  was  a  want  of 
jurisdiction,  the  judgment  will  be  void 
in  whatever  court  it  was  rendered '; 
and  in  People  v.  Cassels,  5  Hill,  164, 
168,  the  same  learned  judge  makes 
the  remark  that  no  court  or  officer 
can  acquire  jurisdiction  by  the  mere 
assertion  of  it,  or  by  falsely  alleging 
the  existence  of  facts  upon  which 
jurisdiction  depends.  In  Harrington 
V.  People,  6  Barb.  607,  610,  Paige,  J., 
expresses  the  opinion  that  the  jurisdic- 
tion of  a  court,  whether  of  general  or 


limited  jurisdiction,  may  be  inquired 
into,  although  the  record  of  the  judg- 
ment states  facts  giving  it  jurisdiction. 
He  repeats  the  same  view  in  Noyes  v. 
Butler,  6  Barb.  613,  617,  and  in  Hard 
V.  Shipman,  6  Barb.  621,  623,  624, 
where  he  says  of  superior  as  well  as 
inferior  courts,  that  the  recoi-d  is 
never  conclusive  as  to  the  recital  of  a 
jurisdictional  fact,  and  the  defendant 
is  always  at  liberty  to  show  a  want  of 
jurisdiction,  although  the  record  avers 
the  contrary.  If  the  court  had  no 
jurisdiction,  it  had  no  power  to  make 
a  record,  and  the  supposed  record  is 
not  in  truth  a  record;  citing  Star- 
buck  V.  Murray,  5  Wend.  15S,  21  Am, 
Dec.  172.  The  language  of  Gridley, 
J.,  in  Wright  v.  Douglass,  10  Barb. 
97,  111,  is  still  more  in  point.  He 
observes:  'It  is  denied  by  counsel  for 
the  plaintiff  that  want  of  jurisdiction 
can  be  shown  collaterally  to  defeat  a 
judgment  of  a  court  of  general  juris- 
diction. The  true  rule,  however,  is 
that  laid  down  in  the  opinion  just 
cited  (opinion  of  Bronson,  J.,  in  Bloom 
V.  Burdick,  1  Hill,  138,  143;  37  Am. 
Dec.  299),  that  in  a  court  of  general 
jurisdiction  it  is  to  be  presumed  that 
the  court  has  jurisdiction  till  the  con- 
trary appears,  but  the  want  of  juris- 
diction may  always  be  shown  by 
evidence,  except  in  one  solitary  case,' 
viz. :  '  When  jurisdiction  depends  on  a 
fact  that  is  litigated  in  a  suit,  and  is 
adjudged  in  favor  of  the  party  who 
avers  jurisdiction,  then  the  question  of 
jurisdiction  is  judicially  decided,  and 
the  judgment  record  is  conclusive  evi- 
dence of  jurisdiction,  until  set  aside  or 
reversed  by  a  direct  proceeding.' 

"The  general  term  in  that  case  held 
that  a  judgment  of  the  supreme  court 
was  void  for  want  of  service  of  an  at- 
tachment, notwithstanding  tiiat  the 
record  averred  that  the  attachment 
had  been  duly  served  and  returned, 
according  to  law.  The  judgment  in 
the  case  cited  was  reversed  (7  N.  Y. 
564),  but  not  upon  tlie  point  referred 
to  here.  It  cannot,  however,  be  held 
to  be  an  adjudication  upon  that  point, 
because  the  judgment  was  not  ren- 
dered in  tiie  exercise  of  the  general 
powers  of  the  court,  but  in  pursuance 
of.a  special  statutory  authority. 


133 


VOID   JUDGMENTS. 


24S 


that  it  cannot  be  reconciled  with  the  Fourteenth  Amend- 
ment to  the  constitution  of  the  United  States,  providing 


"In  the  Chemung  Canal  Bank  v, 
Judson,  8  N.  Y.  254,  the  general  prin- 
ciple is  recognized  that  the  jurisdic- 
tion of  any  court  exercising  authority 
over  a  subject  may  be  inquired  into; 
and  in  Adams  v.  Saratoga  and  Wash- 
ington K  R.  Co.,  10  N.  Y.  328,  333, 
Gridley,  J.,  maintains,  as  to  the  judg- 
ments of  all  courts,  that  jurisdiction 
may  be  inquired  into,  and  disproved 
by  evidence,  notwithstanding  recitals 
in  the  record,  and  says  that  such  is 
the  doctrine  of  the  courts  of  this  state, 
although  it  may  be  different  in  some 
of  the  other  states,  and  perhaps  also 
in  England;  and  he  says  the  idea  is 
not  to  be  tolerated  that  the  attorney 
could  make  up  a  record  or  decree  re- 
citing that  due  notice  was  given  to  the 
defendant  of  a  proceeding,  when  he 
never  heard  of  it,  and  the  decree  held 
conclusive  against  an  offer  to  show 
this  vital  allegation  false.  That  was  a 
case  of  a  special  proceeding,  and  there- 
fore not  an  authority  on  the  point. 
In  Pendleton  v.  Weed,  17  N.  Y.  75. 
where  a  judgment  of  the  supreme 
court  was  sought  to  be  attacked  col- 
laterally, it  is  said  by  Strong,  J.:  'It 
is  undoubtedly  true  that  the  want  of 
jurisdiction  of  the  person  is  a  good  de- 
fense in  answer  to  a  judgment  when 
set  up  for  any  purpose,  and  that  such 
jurisdiction  is  open  for  inquiry ';  and 
by  Comstock,  J.  (p.  77):  '1  assent  to 
the  doctrine  that  where  there  is  no 
suit  or  process,  appearance  or  con- 
fession, no  valid  judgment  can  be  ren- 
dered in  any  court;  that  in  such  a  case 
the  recital  in  the  record  of  jurisdictional 
/acts  is  not  conclusive ';  citing  Starbuck 
V.  Murray,  5  Wend.  158;  21  Am. 
Dec.  172.  'I  think  it  is  always  the 
right  of  a  party  against  whom  a  record 
is  set  up  to  show  that  no  jurisdiction 
of  his  person  was  acquired,  and  conse- 
quently that  there  was  no  right  or 
authority  to  make  up  the  record  against 
him.'  Selden  and  Pratt,  JJ.,  con- 
curred in  these  views,  but  the  case  was 
disposed  of  on  a  different  point. 

"In  Porter  v.  Bronson,  29  How.  Pr. 
292,  19  Abb.  Pr.  236,  the  court  of 
common  pleas  of  the  city  of  New  York 
held,  at  general  term,  that,  assuming 
the  marine  court  to  be  a  court  of  rec- 
ord, a  defendant   in  an   action  on  a 


judgment  of  that  court  might  set  up 
that  he  was  not  served  with  process 
and  did  not  appear,  notwithstanding 
recitals  in  the  record  showing  jurisdic- 
tion; and  in  Bolton  v.  Jacks,  6  Rob. 
(N.  Y.)  198,  Jones,  J.,  says  that  it  is 
now  conceded,  at  least  in  this  state, 
that  want  of  jurisdiction  will  render 
void  the  judgment  of  any  court, 
whether  it  be  of  superior  or  inferior, 
of  general,  limited,  or  local,  jurisdic- 
tion, or  of  record  or  not,  and  that  the 
bare  recital  of  jurisdictional  facts  in 
the  record  of  a  judgment  of  any  court, 
whether  superior  or  inferior,  of  gen- 
eral or  limited  jurisdiction,  is  not  con- 
clusive, but  only  prima  facie,  evidence 
of  the  truth  of  the  fact  recited,  and 
the  party  against  whom  a  judgment  is 
offered  is  not,  by  the  bare  fact  of  such 
recitals,  estopped  from  showing,  by 
affirmative  proof,  that  they  were  un- 
true, and  thus  rendering  the  judgment 
void  for  want  of  jurisdiction.  He 
cites  in  support  of  this  opinion  several 
of  the  cases  which  I  have  referred  to, 
and  Dobson  v.  Pearce,  12  N.  Y.  164, 
and  Hatcher  v.  Rocheleau,  18  N.  Y. 
92. 

"It  thus  appears  that  the  current 
of  judicial  opinion  in  this  state  is  very 
strong  and  uniform  in  favor  of  the 
proposition  stated  by  Jones,  J.,  in 
Bolton  V.  Jacks,  6  Rob.  (N.  Y.) 
198,  and  if  adopted  here  is  deci- 
sive of  the  present  case.  It  has  not 
as  yet,  however,  been  divactly  ad- 
judicated, and  if  sustained  it  must  rest 
upon  the  local  law  of  this  state,  as  it 
finds  no  support  in  adjudications  else- 
where. There  are  reasons,  however, 
founded  upon  our  system  of  practice, 
which  would  warrant  us  in  so  holding. 
The  powers  of  a  court  of  equity  being 
vested  in  our  courts  of  law,  and  equi- 
table defenses  being  allowable,  there 
is  no  reason  why,  to  an  action  upon  a 
judgment,  the  defendant  should  not  be 
permitted  to  set  up,  by  way  of  de- 
fense, any  matter  which  would  be 
ground  of  relief  in  equitj^  against  the- 
judgment;  and  it  is  conceded  in  those 
states  where  the  record  is  held  con- 
clusive, that  when  the  judgment  has 
been  obtained  by  fraud  or  without 
bringing  the  defendant  into  court,  and 
the  want  of  jurisdiction  does  not  ap- 


247 


VOID    JUDGMENTS. 


§133 


that  no  state  shall  "  deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law."     It  may  be  very 


pear  upon  the  face  of  the  record,  relief 
may  be  obtained  in  equity. 

"The  technical  difficulty  arising  from 
the  conclusiveness  of  th^ record  is  thus 
o  b viated.  In  the  present  case  the  judg- 
ment is  set  up  by  the  defendants  as  a  bar 
to  the  plaintiff's  action.  But  it  must  be 
borne  in  mind  that  this  is  an  equitable 
action,  being  for  the  foreclosure  of  a 
mortgage.  The  defendants  set  up  the 
foreclosure  in  the  McFarquahar  case 
as  a  bar,  but  being  in  a  court  of  equity, 
the  plaintiff  had  a  right  to  set  up  any 
matter  showing  that  the  defendants 
ought  not  in  equity  to  avail  themselves 
of  that  judgment.  They  offered  to 
show  that  it  was  entered  ex  pai-ie  on 
forged  papers.  It  does  not  appear 
that  the  plaintiff  ever  had  any  knowl- 
edge of  it,  and  it  is  not  pretended  that 
he  was  legally  summoned.  Such  a 
judgment  would  never  be  upheld  in 
equity,  even  in  favor  of  one  ignorant 
of  the  fraud  and  claiming  bona  Jide 
under  it.  He  stands  in  no  better  posi- 
tion than  any  other  party  claiming 
bona  fide  under  a  forged  instrument. 

"The  case  is  analogous  in  principle 
to  that  of  Bridgeport  Savings  Bank 
V.  Eldredge,  28  Conn.  557;  73  Am. 
Dec.  688.  That  was  a  bill  filed  by  a 
second  mortgagee  to  redeem  mortgaged 
premises  from  a  first  mortgagee.  The 
first  mortgagee  had  obtained  a  decree 
of  foreclosure  against  the  second,  and 
the  time  limited  for  redemption  had 
expired.  The  record  of  the  decree 
found  the  fact  that  legal  service  of  the 
bill  in  the  first  suit  had  been  made  on 
the  second  mortgagee,  but  in  fact  none 
had  been  made,  and  he  had  no  actual 
knowledge  of  the  pendency  of  the  suit 
until  after  the  time  limited  for  redemp- 
tion had  expired;  and  he  would  have 
redeemed  if  he  had  known  of  the  de- 
cree. 

"It  was  held,  —  1.  That  the  decree 
was  not  in  any  proper  sense  a  bar  to 
the  present  suit,  as  a  judgment  at  law 
would  be  a  bar  to  a  suit  at  law;  but 
that,  without  impugning  the  decree, 
the  court  could,  for  equitable  reasons 
shown,  allow  a  further  time  for  re- 
demption; 

"2.  That,  therefore,  the  question 
whether  the  plaintiff  could  contradict 
the  record,  by  showing  that  no  service 


of  the  bill  was  in  fact  made  upon 
hiui,  did  not  present  itself  as  a  tech- 
nical one,  to  be  determined  by  the 
rules  with  regard  to  the  verity  of  judi- 
cial records,  but  only  in  its  relation  to 
the  plaintiff's  rights  to  equitable  relief, 
and  therefore,  that  evidence  of  want 
of  notice  was  admissible. 

"  The  bill  to  redeem  was  not  framed 
to  open  the  former  decree,  and  con- 
tained no  allegations  adapted  to  or 
praying  for  such  relief,  but  was  in  the 
ordinary  form  of  a  bill  for  redemption, 
taking  no  notice  of  the  previous  de- 
cree. The  decree  was  set  up  in  the 
answer,  and  it  was  averred  that  it  was 
rendered  on  legal  notice  to  the  plain- 
tiff. The  court,  however,  held  that 
this  defense  might  be  rebutted  by  evi- 
dence of  facts  which  should  preclude 
defendants  from  taking  advantage  of  a 
decree  of  which  they  could  not  con- 
scientiously avail  themselves. 

"Under  the  system  of  practice  in 
this  state,  no  reply  to  an  answer  set- 
ting up  new  matter  is  required,  but 
the  plaintiff  is  allowed  to  rebut  it  by 
evidence.  Neither  is  it  necessary  to 
anticipate  a  defense  arising  upon  a 
deed  or  record  by  inserting  matter  in 
the  complaint  in  avoidance  of  it.  The 
defense  may  never  be  set  up,  and  the 
plaintiff  is  not  bound  to  suppose  that 
it  will  be.  The  state  of  the  pleadings, 
therefore,  presents  no  difficulty.  The 
only  question  which  might  be  raised 
is,  that  McFarquahar,  in  whose  name 
the  decree  was  obtained,  sbould  be  be- 
fore the  court;  but  no  such  objection 
was  made  at  the  trial,  and  if  it  had 
been,  I  do  not  see  that  he  has  any  in- 
terest in  the  question.  All  the  parties 
claiming  under  the  decree  and  sale  are 
parties  to  this  action,  and  I  see  no  rea- 
son why  the  validity  of  the  McFarqua- 
har foreclosure  cannot  be  tried  herein 
as  well  as  upon  a  motion  or  in  a  sepa- 
rate suit  to  set  aside  the  decree.  The 
judgment  should  be  reversed,  and  a 
new  trial  ordered."  Upon  a  new  trial 
of  this  cause,  it  was  held  that  defend- 
ant must  assume  the  burden  of  satis- 
factorily disproving  jurisdiction;  and 
as  he  was  not  able  to  do  this,  the 
judgment  against  him  was  sustained: 
Ferguson    v.    Crawford,    80    N.    Y. 

6oy. 


§   133  VOID    JUDGMENTS.  248 

seriously  contended  that  to  permit  a  state,  through  its 
courts,  to  make  a  judicial  record  against  a  person,  in  his 
absence  and  without  service  of  process,  and  then  to  deny 
him  the  right  to  show  that  he  had  no  knowledge  or  notice 
of  the  action,  and  therefore  no  opportunity  to  defend  it, 
is  to  deprive  him  of  property  without  due  process  of  law. 
Undoubtedly,  if  the  defendant  was  not  a  citizen  of  the 
state,  and  he  is  sued  upon  the  judgment  in  another  state, 
he  may  show  that  the  court  did  not  have  jurisdiction  over 
him,  no  matter  what  jurisdictional  findings  or  recitals  it 
placed  in  its  record;^  but  this  right  to  controvert  in  one 
state  the  judgment  of  a  court  of  another  state  existed  inde- 
pendently of  the  Fourteenth  Amendment.  AVhether  that 
amendment  can  affect  a  judgment  in  a  state  in  which  it 
was  pronounced  is  a  question  which  has  never,  so  far  as 
we  are  aware,  been  presented  to  the  supreme  court  of  the 
United  States.  In  Massachusetts  it  has  been  decided,  and 
we  think  correctly,  that  one  against  whom  an  action  is 
brought  in  that  state,  upon  a  judgment  rendered  therein, 
may  avoid  it  by  proving  that  he  was  not  served  with  pro- 
cess, nor  did  he  appear  in  the  action,  and  that  at  the  time 
of  the  alleged  service  of  process  he  was  an  inhabitant  and 
resident  of  another  state.''  The  court  pronouncing  this 
decision  thought  it  to  be  a  necessary  consequence  of  the 
Fourteenth  Amendment;  but  in  our  judgment,  it  could 
more  properly  have  been  placed  upon  the  ground  that,  as 
the  defendant  was  not  a  resident  or  citizen  of  the  state,  its 
courts  could  not,  independently  of  that  amendment,  make 
any  record  by  which  to  bind  him  personally.  The  Four- 
teenth Amendment  is  as  much  a  prohibition  of  the  action 
of  a  state  against  its  own  citizens  as  against  citizens  of 
other  states.  The  chief  object  of  that  amendment  was  the 
protection  of  residents  of  each  state  from  any  action  on 
its  part  which  could  deprive  them  of  life,  liberty,  or  prop- 

'  Knowles  w.  Gas  L.  Co.,  19  Wall.  «  Needham  v.  Thayer,  147  Mass. 
58;  Thompson  v.  Whitniau,  IS  Wall.  536;  Elliott  v.  McCormick,  144  Mass. 
457.  10. 


249  VOID    JUDGMENTS.  §  134 

erty  without  due  process  of  law,  rather  than  their  protec- 
tion against  the  action  of  states  in  which  they  did  not 
reside;  and  we  apprehend  that  it  is  not  a  sufficient 
answer  to  one  claiming  the  protection  of  this  amendment, 
that  he  is  a  citizen  or  resident  of  the  state  against  or 
against  whose  courts  he  invokes  its  aid.  On  the  other 
hand,  it  may  be  contended,  with  equal  and  we  think  with 
greater  force,  that  the  rules  of  law  giving  effect  to  juris- 
dictional recitals,  and  creating  presumptions,  whether  dis- 
putable or  indisputable,  in  favor  of  judgments  of  domestic 
courts  of  general  jurisdiction,  are  not  the  result  of  any 
legislative  or  other  action  on  the  part  of  a  state,  prohibited 
by  the  amendment;  that  these  rules  existed  prior  to  the 
adoption  of  the  amendment,  independent  of  any  special 
legislative  action,  and  necessarily  attended  the  creation  of 
the  judicial  department  of  the  government  and  the  invest- 
ing it  with  power  to  take  and  exercise  jurisdiction  over 
certain  subject-matters,  and,  for  that  purpose,  to  require 
all  citizens  or  residents  to  appear  and  submit  to  its  exer- 
cise; that  it  is  essential  to  the  effective  exercise  of  this 
jurisdiction  that  the  courts  shall  have  power,  as  at  com- 
mon law,  to  make  judicial  records  of  uncontrollable  verity, 
and  that  such  hardships  as  may  arise  shall  be  borne,  unless 
the  circumstances  are  such  as  warrant  the  granting  of  re- 
lief in  courts  of  equity,  upon  the  equitable  principles  there 
recognized  and  enforced. 

§  134.    Reasons  for  Holding  the  Record  Conclusive.  — 

All  the  arguments  adduced  to  show  that  the  inquiry  into 
the  jurisdiction  over  the  parties  in  the  tribunal  pronoun- 
cing judgment  should  on  all  occasions  be  considered  as 
open  seem  to  admit  of  ready  answers.  That  the  matters 
intended  by  a  court  of  record  for  its  memorials  may  be 
proved  not  to  be  a  record  by  parol  evidence  is  in  conflict 
with  the  principle  recognized  from  the  earliest  times  of 
our  common  law  that  the  plea  of  nul  tiel  record  was  to  be 
decided  only  by  inspection  of  the  alleged  matter  of  record. 


§   135  VOID   JUDGMENTS.  250 

He  may  appeal  to  some  higher  tribunal  and  have  the  judg- 
ment reversed;  he  may  move  in  the  tribunal  where  it  was 
pronounced  and  have  it  set  aside;    or  he  may  seek  and 
obtain  equitable  aid  to  prevent  its  execution.     It  is  true^ 
the  court  has  ample  authority  to  make  a  record;  and  it  is 
not  true  that  this  authority  is  dependent  upon  jurisdiction 
over  the  party  against  whom  the  record  speaks.     Neither 
is  it  true  that  maintaining  the  verity  of  the  record  in 
collateral  proceedings  is  more  repugnant  to  natural  jus- 
tice than  the  opposite  course  would  be.     A  party  who  has 
been  wronged  by  being  judged  without  any  opportunity 
to  make  his  defense  may  avoid  the  adjudication  in  vari- 
ous ways.     He  cannot  generally  affect  the  rights  of  inno- 
cent third  parties,  growing  out  of  a  judgment  regular  on 
its  face.     But  as  to  those  parties,  it  would  be  as  great  a 
violation  of  the  principles  of  "  natural  justice"  to  deprive 
them  of  property  acquired  for  a  valuable  consideration, 
by   establishing    some    hidden    infirmity  preceding    the 
judgment,  as  it  is  to  deprive  the  defendant  of  his  rights 
by  maintaining  the  integrity  of  the  record.     And  as  the 
law  cannot  minister  abstract  justice  to  all  the  parties,  it 
is  at  liberty  to  pursue  such  a  course  as  will  best  subserve 
public  policy.     This  course  requires  that  there  should  be 
confidence  in  judicial  tribunals,  and   that   titles  resting 
upon   the  proceedings  of  those  tribunals   should  be  re- 
spected and  protected.     The  hardship    arising   from   an 
erroneous    or   inadvertent    decision   upon  jurisdictional 
questions  is  no  greater  than   that  issuing  from  an  erro- 
neous or  inadvertent  decision  upon  other  matters.     That 
the  reversal  of  a  judgment  in  an  appellate  court  shall  not 
affect  rights  acquired  under  it  by  third  parties,  is  a  rule 
universally  and  uncomplainingly  acknowledged, 

§  135.  Judgment  never  Void  for  Error.  —  Jurisdiction 
being  obtained  over  the  person  and  over  the  subject- 
matter,  no  error  or  irregularity  in  its  exercise  can  make 


251 


VOID    JUDGMENTS. 


§135 


the  judgment  void.^  The  authority  to  decide  being  shown, 
it  cannot  be  divested  by  being  improperly  or  incorrectly 
employed.  Error  of  decision  may  be  corrected,  but  not 
so  as  to  reach  those  who  have  in  good  faith  relied  upon 
its  correctness.^  The  same  rules  apply  to  actions  to  re- 
cover delinquent  taxes  as  in  other  cases,  in  respect  to 
collateral  attacks.^  It  cannot  be  shown,  to  avoid  the  effect 
of  such  judgments,  that  the  taxes  were  previously  paid.* 
Neither  will  such  judgment  be  any  the  less  effective  be- 
cause it  appears  from  the  judgment  roll  that  the  assess- 
ment was  illegal  and  void.®     The  following  are  instances 


»  Wimbish  v.  Breeden,  77  Va.  324; 
Walker  v.  Goldsmith,  14  Or.  125; 
Rosenheim  v.  Hartsock,  90  Mo.  357; 
Brooks  V.  Brooks,  97  N.  C.  136;  Levan 
V.  Millholland,  114  Pa.  St.  49;  Young 
V.  Sellers,  106  Ind.  101;  Saner  v.  Twin- 
ing,  81  Ind.  366;  Scranton  v.  Ballard, 
64  Ala.  402;  Fox  v.  Cottage  B.  F.  A., 
81  Va.  677;  Lindsey  v.  Delano,  78 
Iowa,  350;  McCoy  v.  Ayres,  2  Wash. 
203;  Roby  v.  Verner,  31  Kan.  306; 
Lancaster  v.  Wilson,  27  Gratt.  629; 
Thaw  V.  Falls,  136  U.  S.  519;  State  o. 
Smith,  100  N.  C.  550;  Sweet  v.  Ward, 
43  Kan.  695;  Rollins  v.  Henry,  84  N.  C. 
569;  Wimberly  v.  Hurst,  33  111.  166; 
83  Am.  Dec.  295;  Cloud  v.  El  Dorado 
Co.,  12  Cal.  128;  73  Am.  Dec.  526;  Es 
parte  Watkins,  3  Pet.  193;  Preston  v, 
Clark,  9  Ga.  246;  Blakely  r.  Calder,  61 
Pa.  St.  621;  Boston  etc.  R.  R.  Co.  v. 
Sparhawk,  1  Allen,  448;  79  Am.  Dec. 
750;  Cailleteau  v.  Ingouf,  14  La.  Ann. 
623;  Bolgiano  v.  Cooke,  19  Md.  375; 
Savage  v.  Hussey,  3  Jones,  149;  Hath- 
away V.  Hemmingway,  20  Conn.  191; 
Feaster  v.  Fleming,  56  111.  457;  Flem- 
ing V.  Johnson,  26  Ark.  421;  Barnum 
V.  Kennedy,  21  Kan.  181;  Maloney  v, 
Dewey,  127  111.  395;  11  Am.  St.  Rep. 
131;  Chase  v.  Christianson,  41  Cal.  253. 

«Pursly  V.  Hayes,  22  Iowa,  11;  92 
Am.  Dec.  350. 

3  Scott  V.  Pleasants,  21  Ark.  364; 
Eitel  V.  Foote,  39  Cal.  439;  Wellshear 
V.  Kelly,  69  Mo.  343;  Graceland  C.  Co. 
V.  People,  92  111.  619;  Schmidt  v.  Nei- 
meyer,  100  Mo.  207;  Brown  r.  Walker, 
85  Mo.  262;  Driggers  v.  Cassady,  71 
Ala.  529.  In  Illinois,  however,  judg- 
ments for  taxes  are  not  conclusive, 
where  there  was  no  personal  service 


upon  or  appearance  by  the  owner  of 
the  property:  Gage  v.  Busse,  114  111. 
589. 

*  Cadmus  v.  Jackson,  52  Pa.  St.  295. 

»  Mayo  V.  Ah  Loy,  32  Cal.  477;  91 
Am.  Dec.  595;  Mayo  v.  Foley,  40  Cal. 
281;  Jones  o:  Gillis,  45  Cal.  541;  An- 
derson V.  Ryder,  46  Cal.  134;  Allen 
V.  Ray,  96  Mo.  542;  Ward  v.  Dough- 
erty, 75  Cal.  240.  These  cases  seem 
to  me  irreconcilable  with  a  portion  of 
the  opinion  in  the  case  of  Reilly  v. 
Lancaster,  39  Cal.  354.  In  Mayo  v. 
Ah  Loy,  32  Cal.  477,  91  Am.  Dec.  595, 
the  court  said,  that  while  a  tax  im- 
posed on  property  on  I  Street,  to  pay 
for  improving  J  Street,  would  be  un- 
authorized and  invalid,  yet  if  such  a 
tax  were  assessed,  and  a  suit  begun 
for  its  collection,  a  judgment  in  favor 
of  the  plaintiff,  if  the  court  had  juris- 
diction, would  be  valid.  In  the  case  of 
Mayo  V.  Foley,  40  Cal.  281,  it  appeared 
from  the  record  that  several  lots  had 
been  assessed  in  gross,  and  that  a  judg- 
ment by  default  had  been  rendered  in 
a  suit  upon  such  assessment.  The 
assessment  was  conceded  to  be  in- 
valid. But  its  want  of  validity  was 
held  not  to  affect  the  judgment  ren- 
dered to  enforce  it.  But  in  Reilly  v. 
Lancaster,  39  Cal.  354,  it  appeared 
from  the  complaint  in  the  record  that 
the  tax  was  levied  and  assessed  by 
virtue  of  a  certain  act  of  the  legislature. 
This  act  was  unconstitutional.  The 
court  decided  that  the  judgment  and 
the  sale  thereunder  were  void.  Why 
and  upon  what  principles  a  person 
sued  for  a  tax  levied  by  virtue  of  an 
unconstitutional  law  may  suffer  judg- 
ment to  be  entered  against  him  without 


§  135  VOID    JUDGMENTS.  252 

of  judgments  which,  though  erroneous  or  irregular,  are 
not  void:  Judgments  on  obligations  not  yet  due,^  or  en- 
tered before  the  expiration  of  the  time  allowed  to  answer,^ 
or  based  upon  an  assessment  of  damages  by  the  court 
when  a  party  was  entitled  to  a  jury,^  or  for  liquors  retailed 
without  a  license  when  the  statutes  declared  that  no  one 
shall  obtain  such  judgment;*  judgment  in  the  absence  of 
taking  evidence  and  making  findings,  the  statute  requir- 
ing the  court,  before  proceeding  to  judgment,  to  take 
evidence  and  make  findings;^  a  judgment  against  lands 
for  a  sum  in  gross,  when  it  should  have  been  against  each 
parcel  separately,^  or  on  a  demand  which  the  record  shows 
was  barred  by  the  statute  of  limitations;^  an  order  approv- 
ing the  surrender  to  the  firm  creditors  by  the  survivors 
of  a  partnership  of  the  interest  of  a  deceased  partner;^ 
an  order  making  an  irregular  and  erroneous  appointment 
of  an  assignee  in  bankruj)tcy;^  a  decree  authorizing  a  sale 
without  redemption,  when  the  statute  gave  the  right  to 
redeem;*"  a  judgment  based  on  irregular  but  amendable 
proceedings  in  attachment;"  an  order  approving  the  bond 
of  an  assignee  in  insolvency  in  a  sum  less  than  that  fixed 
by  a  previous  order  of  the  court;*''  an  order  alleged  to 
have  been  influenced  by  the  interests  of  infants,  when 
the  court  had  no  right  to  consider  such  interest;"  a  decree 
in  foreclosure  which  was  founded  on  a  complaint  which 

affecting  his  rights   is  not  explained,  '  Essig  v.  Lower,  120  Ind.  239;  Solo- 

This  action  was  brought  in  a  court  of  mon  v.  Newell,  67  Ga.  572. 

general  jurisdiction.     The   court   had  *  Carter  v.  Roland,  53  Tex.  540. 

authority  to   determine   whether   the  *  Rasberry  v.  Pullian,  78  Ala.  191. 

tax  was  levied  under  a  constitutional  ^  Garner    v.    State,    28    Kan.     790; 

law.  By  rendering  judgment  for  plain-  Johnston  ?;.  San  Francisco  S.  U.,  75 

tilf,  it  affirmed  the  validity  of  the  tax  Cal.  134;  7  Am.  St.  Rep.  129. 

and  of  the  law.     Why  was  this  judg-  ^  Pritchard  v.  Madren,  31  Kan.  38. 

ment  coram  nonjudice?     If  not  coram  ''  Head  v.  Daniels,  38  Kan.  1. 

720)1  judice,  why  was    it   void?      The  ®  Tua  «.  Carriere,  117  U.  S.  201, 

court  had  jurisdiction  of  the  subject-  ®  Raymond   v.    Morrison,   59  Iowa, 

matter  and  of  the  parties.     Its  decis-  371. 

ion  was  erroneous,  but  not   more   so  '"  Moore  v.  Jeffers,  53  Iowa,  202. 

that  the  judgments  in  question 'in  the  i'  Connolly  v.  Edgerton,  22  Neb.  82; 

cases  of  Mayo  v.  Ah  Loy,  32  Cal.  477,  Harvey  v.  Foster,  64  Cal.  296. 

91  Am.  Dec.  595,  and  Mayo  v.  Foley,  i^  l^i^j-s  v.  Kelly,  67  Cal.  289. 

40  Cal.  281,  13  Woodhouse    v.  Fillbates,  77   Va. 

»  Mikeska  v.  Blum,  63  Tex.  44,  317. 


253  VOID  JUDGMENTS.  §  135  a 

did  not  set  out  the  conditions  of  the  mortgage  foreclosed;* 
a  decree  appointing  a  new  trustee,  without  giving  notice  to 
the  trustee  superseded  thereby;^  a  judgment  in  a  national 
court  founded  on  an  order  erroneously  directing  the  re- 
moval of  a  cause  from  the  state  court.*  A  judgment  of  a 
state  court,  after  it  had  erroneously  refused  to  remove  a 
cause  to  the  national  courts,  has  also  been  held  to  be  valid^ 
as  long  as  the  party  affected  thereby  does  not  procure  its 
vacation  or  reversal  in  some  manner;*  but  this  holding 
was  probably  erroneous,  because  on  the  filing  of  the 
proper  petition  and  the  taking  of  proper  proceedings  for 
the  removal  of  a  cause  to  a  national  from  a  state  court, 
the  jurisdiction  of  the  latter  seems  to  absolutely  terminate.* 

§  185  a.  Judgments  without  Issue  Joined.  —  In  the 
preceding  section  we  have  shown  by  numerous  cita- 
tions that  when  jurisdiction  over  both  the  parties 
and  the  subject-matter  is  once  obtained,  no  error  com- 
mitted in  the  exercise  of  that  jurisdiction  can  make 
the  proceedings  or  judgment  of  the  court  void.  We  do 
not  remember  ever  meeting  any  direct  denial  of  this 
rule.  But  there  are  cases,  or  perhaps,  more  accurately 
speaking,  expressions  of  the  courts,  which  we  are  unable 
to  reconcile  with  the  rule.  Among  these  expressions  are 
some,  made  upon  different  occasions  in  the  state  of  Missis- 
sippi, in  regard  to  the  effect  of  judgments  rendered  in  the 
absence  of  any  issue  of  law  or  of  fact.  The  high  court  of 
errors  and  appeals  in  that  state,  but  a  few  years  ago,  twice 
declared  that  "a  judgment  without  an  issue  to  be  deter- 
mined by  it  is  a  nullity";^  and  this  language  was  subse- 
quently cited  and  approved  by  the  supreme  court  of  the 
same  state.'    In  neither  of  the  cases  was  any  jurisdictional 

1  Berry  v   King,  15  Or.  165.  '  Railroad  Co.  v.  Koontz,  104  U.  S. 

2  Bassett  v.  Crafts,  129  Mass.  513;  14;  Steamship  Co.  v.  Tugiiian,  106 
McKim?;.  Doane,  137  Mass.  195.  U.  S.  118. 

s  Ues   Moines   Nav.  &  R.  R.  Co.  v.  "  Steele    v.    Palmer,   41    Miss.    89; 

Iowa    Homestead   Co.,  123  U.  S.  552;  Armstrongs  Barton,  42  Miss   506. 

Girardy  v.  Bessman,  77  (^a.  483.  '  Porterfield  r.  Butler,  47  Miss.  170; 

*  Johnson  v.  Brewers'  Fire  lus.  Co.,  12  Am.  Rep.  329. 
61  Wis.  670. 


§   136  VOID    JUDGMENTS.  254 

question  presented.  The  parties  seem  to  have  been  prop- 
erly in  court.  The  rendition  of  the  judgments  was  there- 
fore but  an  erroneous  exercise  of  the  powers  possessed  by 
the  court.  The  error,  in  each  instance,  was  corrected 
upon  appeal.  The  parties  did  not  undertake  to  treat  the 
judgments  as  void;  and  no  doubt  the  language  of  the 
court  is  attributable  to  the  use  of  the  words  "void"  and 
"  erroneous  "  as  convertible  terms,  rather  than  to  any  in- 
tent of  declaring  that  the  judgments  before  them  on  ap- 
peal were  "  nullities,"  in  the  absolute  sense  of  that  term. 
It  has  nevertheless,  though  somewhat  timidly,  been  sug- 
gested that  it  may  be  true  that  a  judgment  without  an 
issue  is  void,  because  until  an  issue  is  formed  there  is  no 
question  presented  to  the  court  for  decision,  —  no  subject- 
matter  upon  which  it  can  act.*  If  this  were  true,  the 
power  of  the  judiciary  could  and  would  be  entirely  evaded 
by  defendants  neglecting  to  interpose  any  defense,  for  it 
is  only  by  such  interposition  that  an  issue  can  be  formed. 

§  136.  Judgments  as  Entireties.  —  At  a  comparatively 
early  day  in  American  jurisprudence,  a  dictum  was  pro- 
nounced to  the  effect  that  if  a  judgment  is  void  as  against 
one  of  the  parties  thereto  it  is  void  as  against  all.^  This 
dictum  was  founded  upon  an  early  New  York  case  ^de- 
claring that  on  certiorari  a  judgment  must  be  affirmed  or 
reversed  as  a  whole.  That  in  many  cases  a  judgment 
against  two  or  more  must  be  wholly  reversed  or  vacated 
because  void  or  erroneous  as  to  one  only  of  them,  is  true;* 
but  whether  it  is  wholly  void,  if  neither  reversed  nor 
vacated,  is  an  entirely  different  question.  Upon  what 
principle  can  a  defendant  before  the  court  claim  its 
judgment  to  be  void  as  against  him,  when  the  court  had 

^  Black  on  Judgments,  sec.  184.  Williams,    24   Ohio,    625;    Gargan    v. 

2  Hall  V.  Williams,  6  Pick.  232;  17  School    District,    4   Col.    53;  Streeter 

Am.  Dec.  356.  v.   Marshall,  4  Col.   535;  Wootters  v. 

*  Richards    v.    Walton,    12    Johns.  Kauffman,   67  Tex.    488;  Williams  v, 

434.  Chalflant,  82  111.  218;  Donnelly  v.  Gra. 

■•  Newburg  v.  Munshower,  29  Ohio,  ham,  77  Pa.  St,  274;  Claflin  v.  Dnnne, 

617;    23   Am.    Rep.    769;    Frazier    v.  129  111.  24;  16  Am.  St.  Rep.  263. 


255  VOID  JUDGMENTS.  §  137 

jurisdiction  over  him  and  over  the  subject-matter,  and  he 
chooses  to  take  no  measures  to  correct  its  error?  Gener- 
ally, the  courts  following  the  dictum  mentioned  above 
have  contented  themselves  with  citing  it  as  their  author- 
ity; but  so  many  of  them  have  followed  it,  that  it  was  at 
one  time  very  doubtful  whether  it  was  not  sustained  by 
the  majority  of  the  adjudications  upon  the  subject/  We 
think  this  doubt  no  longer  exists,  and  that  the  decided 
preponderance  of  authorities  maintains  that  a  judgment 
against  two  or  more  is  not  void  as  against  those  of  whom 
the  court  had  jurisdiction,  though  void  as  against  others.^ 

§  137.  Judgment  for  Contempt  of  Court.  —  In  Tennes- 
see, it  was  decided  that  it  is  essential  to  the  validity  of  a 
judgment  for  contempt  that  it  should  state  as  ground  for 
its  jurisdiction  the  matters  constituting  the  alleged  con- 
tempt.^ But  this  decision  professes  to  be  a  departure  from 
the  common  law,  and  such  it  undoubtedly  is;*  for  the 
authorities  upon  this  subject  generally  affirm  that  a  judg- 
ment or  sentence  for  contempt  need  not  state  the  facts  or 
conduct  constituting  the  supposed  contempt,'  though  it 
should  show  that  the  sentence  was  imposed  as  a  punish- 
ment for  contempt;  and  if  it  merely  directs  a  party  to  be 
imprisoned,  without  indicating  that  such  imprisonment 

»  Holbrook  v.  Murray,  5  Wend.  161;  Holton  v.  Towner,  81  Mo.  360;  Shall- 
92  Am.  Dec.  584;  Wilbur  v.  Abbott,  cross  v.  Smith,  81  Pa.  St.  132;  York 
60  N.  H.  40;  Martin  v.  Williams,  42  Bank's  Appeal,  36  Pa.  St.  460;  Win- 
Miss.  210;  97  Am.  Dec.  456;  Hanley  Chester  v.  Beardin,  10  Humph.  247;  51 
V.  Doroghue,  59  Md.  239;  43  Am.  Rep.  Am.  Dec.  702;  Crank  v.  Flowers,  4 
554;  Wright  v.  Andrews,  130  Mass.  Heisk.  631;  Kitchens  v.  Hutchins,  44 
149;  Knapp  v.  Abell,  10  Allen,  485;  Ga.  620;  Gray  v.  Stuart,  33  Gratt. 
Bufifum  V.  Ramsdell,  55  Me.  252;  92  351;  North  t>.  Mudge,  13  Iowa,  498;  81 
Am.  Dec.  589;  Hulme  v.  Jones,  6  Am.  Dec.  411. 
Tex.  242;  55  Am.  Dec.  774.  ^  State  v.  Galloway,  5  Cold.  326;  98 

2  Ash  V.   McCabe,  21  Ohio  St.  181;  Am.  Dec.  404. 

Douglass  V.  Massie,   16  Ohio,  271;  47  ''Ex   parte   Summers,  5  Ired.   149; 

Am.  Dec.  375;  Newburgv.  Munshower,  Burdett  v.  Abbot,  14  East,  1;  Stock- 

29  Ohio  St.  617;  23  Am.  Rep.  769;  St.  dale  v.  Han.sard,  9  Ad.  &  E.  1;  Sherifif 

John   V.    Holmes,   20  Wend.   609;   32  of    Middlesex's    Case,    11    Ad.    &    E. 

Am.  Dec.  603;  Mercer  v.  James,  6  Neb.  273. 

406;  Bailey  ?;.  McGinness,  57  Mo.  362;  *  Easton  v.   State,  .S9  Ala.  551;   87 

Cheek  v.  Pugh,   19  Ark.  574;  Valen-  Am.  Dec.  49;  State  v.  Woodfin,  5  Ired. 

tine   V.    Cooley,    Meigs,   618;   33  Am.  199;  42  Am.  Dec.   161;  Lord  Mayor's 

Dec.  166;  Lenox  v.  Clark,  52  Mo.  115;  Case,  3  Wils.  188,  204. 


g   137  VOID    JUDGMExXTS.  256 

is  for  contempt,  he  is  entitled  to  liis  release  on  habeas  cor- 
pus.^ In  California,  the  statute  "regulating  contempts 
and  their  punishment  provides  that  when  the  alleged 
contempt  is  not  committed  in  the  presence  of  the  court 
an  affidavit  of  the  facts  constituting  the  contempt  must  be 
presented.  If  there  be  no  affidavit  presented,  there  is 
nothing  to  set  the  power  of  the  court  in  motion,  and  if 
the  affidavit  as  presented  be  one  which  upon  its  face 
fails  to  state  the  substantive  facts  which,  in  point  of  law, 
do  or  might  constitute  a  contempt  on  the  part  of  the 
accused,  the  same  result  must  follow;  for  there  is  no  dis- 
tinction in  such  a  case  between  the  utter  absence  of  an 
affidavit  and  the  presentation  of  one  which  is  defective  in 
substance  in  stating  the  facts  constituting  the  alleged 
contempt."  Therefore  an  order  of  a  court  punishing  a 
man  for  contempt  not  committed  in  the  presence  of  the 
court,  unless  it  is  based  upon  an  affidavit  sufficient  in 
substance,  is  void.=^  Judgments  entered  punishing  per- 
sons for  contempt  of  court  are  subject  to  review  in  superior 
courts  upon  jurisdictional  grounds.  The}^  are  sometimes 
brought  up  on  appeal,^  sometimes  on  certiorari,'^  and  are 
frequently,  in  effect,  reviewed  on  writs  of  habeas  corpus; " 
and  the  action  of  the  court  is  sometimes  arrested  by  a 
writ  of  prohibition.^  Nevertheless,  all  courts,  so  far  as  we 
are  aware,  disclaim  the  power  to  review  sentences  for  con- 
tempt imposed  by  other  courts  for  any  error  committed  in 
imposing  them,  unless  such  appeal  has  been  expressly 
given  by  statute.^  A  judgment  punishing  for  a  contempt 
of  court  is  generally  a  finality  from  which  no  appeal  or 

1  Ex  parte  Adams,  25  Miss.  883;  59  nolly,  65  Cal.  28;  In  Matter  of  Vance, 
Am.  Dec.  234.  88  Cal.  262.  „  ^  ,    „. 

2  Batchelder    v.     Moore,     42     Cal.         *  Batchelder  v.  Moore,  42  Cal.  41o. 
415.  6  Ex   parte  Rowe,  7   Cal.    181;   Ex 

3  People    V.    O'Neil,    47    Cal.    109;  parte  Cohen,  6  Cal.  318. 

Heurstal  v.  Muir,  64  Cal.  450;  Neel  v.  «  People    v.    Wright,    27   Cal.    151; 

State,  9  Ark.  259;  50  Am.  Dec.  218.  Heurstal  v.  Muir,  64  Cal.  4o0. 

But  the  California  decisions,  permit-  '  Appeals  were  allowed  m  Stuart  v. 

ting  appeals  from  sentences  imposing  People,    3   Scam.    395;    McCredie    v. 

punishment    for    contempt    of    court.  Senior,  4  Paige,  378;  Shannon  v.  State, 

have  been  overruled:  Tyler  v.  Con-  18  Wis.  604. 


257  VOID    JUDGMENTS.  §§  138,  139 

writ  of  error  lies;'  nor  can  release  from  imprisonment 
thereunder  be  obtained  by  writ  of  habeas  corpus  upon  the 
ground  of  error  of  law  or  of  fact,^  though  both  under  this 
writ  and  upon  certiorari  relief  may  be  had  upon  the  ground 
of  want  of  jurisdiction  in  the  court  imposing  the  sentence, 
and  perhaps,  where  the  facts  are  disclosed  by  the  record, 
upon  the  ground  that  they  did  not  constitute  a  contempt 
and  were  not  punishable  as  such.* 

§  138.  Sundays  and  Holidays.  —  "Sunday  is  dies  non 
juridicus;  and  by  the  common  law  all  judicial  proceed- 
ings which  take  place  on  that  day  are  void."  ^  If,  how- 
ever, a  court  is  authorized  to  receive  the  verdict  of  a  jury 
on  Sundaj'-,  and  is  required  by  law,  "upon  a  verdict,  to 
immediately  render  judgment  accordingly,"  it  must,  if  a 
verdict  is  received  on  Sunday,  give  judgment  thereon  on 
the  same  day.'  Holidays,  other  than  Sundays,  are  not 
non-judicial  days,  unless  expressly  made  so  by  statute, 
and  judgments  rendered  thereon  are  valid.^ 

§  1 39.  Judgment  without  Authority  of  Court.  —  Where 
plaintiff,  in  open  court,  offered  to  let  defendant  take  judg- 

1  State  V.  Galloway,  5  Cold.  326;  98  »  State  v.  Towle,  42  IST.  H.  540; 
Am.  Dec.  404;  State  v.  Towle,  42  Perry's  Case,  30  Wis.  268;  Ex  parte 
N.  H.  450;  State  v.  Woodfia,  5  Ired.  Perkins,  18  Cal.  60;  Ex  parte  Sum- 
199;  42  Am.  Dec.  162;  Peoples.  Kelly,  mers,    5     Ired.     149:     Batclielder    v. 

24  N.  Y.  74;  Easton  v.  State,  39  Ala.  Moore,  42  Cal.  412;  Piper  v.  Pearson, 
551;  87  Am.  Dec.  49;  Casey  v.  State,     2  Gray,  120;  61  Am.  Dec.  438;  Dun- 

25  Tex.  38;  Williamson's  Case,  26  Pa.     bam  v.  State,  6  Iowa,  245. 

St.  9;  67  Am.  Dec.  374;  Clark  v.  Peo-  *  Chapman  v.   State,   5  Blackf.  Ill; 

pie,  Breese,  340;  12  Am.  Dec.  177,  and  Blood  v.  Bates,  31  Vt.  147;  Swaun  v. 

note;  Shaltuck  v.  Sate,  51   Miss.  50;  Broome,   3  Burr.  1595;  Pearce  v.   At- 

24  Am.  Rep.  624;  State  I).  Thurmond,  wood,     13     Mass.      324;     Arthur     v. 

37  Tex.  340;  Pattou  v.  Harris,    15  B.  Mosby,  2  Bibb,  589;  Story  v.   Elliott, 

Mon.    607;    Robb    v.    McDonald,    29  8  Cow.  27;  18  Am.  Dec.  423;  Davis  v, 

Iowa,  330;  4  Am.  Rep.  211;  Vilas  v.  Fish,  1  G.  Greene,  406;  48  Am.   Dec. 

Burton,  27  Vt.  56;  Cossart  v.  State,  14  387;    Allen    v.    Godfrey,    44    N.    Y. 

Ark.  538;  Sanchez  v.  Newman,  70  Cal.  433. 

210;  In  Matter  of  Vance,  88  Cal.  262.  *  Thompson  v.  Church,  13  Neb.  287; 

2  State  V.  Galloway,  5  Cold.  326;  98  Weame  v.  Smith,  32  Wis.  412. 

Am.  Dec.   404;  Williamson's  Case,  26  *  Spalding    v.     Bernhard,    76    Wis. 

Pa.  St.  9;  67  Am.  Dec.  374;  Ex  parte  268;   20   Am.    St.    Rep.    75;    Bear  v. 

Adams,  25  Miss.  883;  59  Am.  Dec.  234;  Youngman,  19  Mo.  App.  41;  Glenn  v. 

Peojde  w.  Cassels,  5  Hill.  ]64;Burnham  Eddy,   51   N.  J.   L.   255;    14  Am.    St 

V.  Morrisey,  14  Gray,  226;  74  Am.  Dec.  Rep.  684;  Hamer  v.  Sears,  81  Ga.  288; 

676;  Ex  parte  Maulsby,  13  Md.   621;  Prister  v.  Stone,  84  Ala.  432;  Slater©. 

In  re  Cooper,   32  Vt.  253;  Matter  of  Schack,  31  Miuu.  269. 
Morton,  10  Mich.  208. 
JUDG.  I.  — 17 


§§   140,  141  VOID    JUDGMENTS.  258 

ment  for  costs,  and  tendered  his  confession  to  that  effect, 
which  the  defendant  refused  to  accept  and  the  court  de- 
clined to  enter,  the  clerk,  at  request  of  plaintiff's  attorney, 
entered  the  confession  in  the  minutes  of  the  court:  Held, 
that  this  entr}',  being  without  consent,  and  in  face  of  the 
decision  of  the  court,  was  a  nullity.^  In  a  very  recent 
case  the  force  of  an  apparent  appointment  of  an  adminis- 
trator was  permitted  to  be  destroyed  by  proof  that  the 
surrogate  in  fact  never  acted  upon  the  application  and 
knew  nothing  of  it,  the  appointment  having  been  written 
by  the  clerk  upon  a  blank  previously  signed  by  the  sur- 
rogate.^ But  in  another  case  a  decree  entered  without 
being  legally  settled,  and  in  violation  of  the  express  direc- 
tions which  the  clerk's  minutes  showed  were  given  by  the 
court  in  relation  to  the  provisions  to  be  inserted,  no 
motion  being  made  to  correct  or  set  it  aside,  was  regarded 
as  the  valid  decree  of  the  court.^ 

§  140.  Deceased  Defendant.  —  If  jurisdiction  be  ob- 
tained over  the  defendant  in  his  lifetime,  a  judgment  ren- 
dered against  him  subsequently  to  his  death  is  not  void.* 

§  141.     A  Judgment  against  a  Party  not  Named  in  the 

complaint,  nor  in  any  other  part  of  the  record,  is  void^ 
where  it  does  not  appear  that  he  was  a  party  intended  to 
be  sued  by  one  of  the  names  inserted  in  the  complaint, 
or  that  he  was  served  with  process.  It  will  not  be  pre- 
sumed that  one  who  does  not  appear  to  have  been  a  party 
had  his  day  in  court.^  The  effect  of  a  judgment  against  one 
incorrectly  named  in  the  record,  or  designated  therein  by 
a  fictitious  name,  will  be  considered  in  another  section.® 

'  Barefield  v-  Bryan,  8  Ga.  463.  contra  opinion,  see  Carter  v.  Carriger, 

*  Roderigas  t>.  East  River  S.  I.,  76  3  Yerg.  411;  24  Am.  Dee.  .585;  also 
N.  Y.  316;  32  Am.  Rep.  309.  Morse  v.  Toppan,  3  Gray,  411,  where 

*  Cushman  i;.  Sliepard,  4  Barb.  113.  it   is   said  t!">at   judgment  "must   be 

*  (.'oIUqs   v.    Mitchell,    5   Fla.    3ii4;  against  one  capable  of  contractmc^,  for 
Loring  V.  Folger,   7  Gray,    505;  Cole-  it  is  a  debt."     For  further  consi'lera- 
man  v.  McAnulty,  16  Mo.  173;  57  Am.  tion  of  this  subject,  see  section  15.3. 
Dec.  229;  Yaple  v.  Titus,  41  Pa.   St.         '  Ford  v.  Doyle,  37  Cal.  346j  Mose- 
203;  Day«.  Hamburg,  1  Browne  (Pa.),  ley  v.  Cocke,  7  Leigh,  225. 
75;Gregory2).Hayue3, 21Cal.  443.  For         ^  Posi,  sec.  164. 


259  VOID   JUDGMENTS.  §  143 

§142.  Jurisdiction  Continues  till  Judgment. — Juris- 
diction over  a  party,  being  obtained,  continues  until 
judgment;  and  he  must  therefore  take  notice  of  all  the 
proceedings  until  that  time.  After  judgment  he  is  not 
regarded  as  always  present  and  under  control  of  the  court. 
An  order  made  after  judgment  setting  aside  a  sale,  no 
notice  being  given  to  the  adverse  party,  will  not  avail  the 
party  who  procured  it.*  Various  motions  may  be  made 
and  proceedings  taken  after  final  judgment,  either  to  cor- 
rect it  by  amendment,  to  vacate  it  for  some  error  or  irreg- 
ularity, to  avoid  it  by  writ  or  error  or  appeal,  or  to  control 
process  issued  for  its  enforcement.  Of  these  proceedings, 
unless  they  necessarily  result  from  a  mere  inspection  of 
the  record,  the  parties  are  entitled  to  notice;  but  such 
notice  may  generally  be  given  to  their  attorneys,  who, 
notwithstanding  the  entry  of  judgment,  are  regarded  as 
still  representing  them  for  the  purpose  of  receiving  no- 
tices of  motions. 

§  143.  Jurisdiction  for  Certain  Purposes  only.  —  Some- 
times a  court  may  have  jurisdiction  over  the  defendant 
for  certain  purposes  only.  Thus  by  a  statute  of  the  state 
of  Ohio,  jurisdiction  was  given  the  court  of  common 
pleas  over  absent  defendants  on  publication  of  notice,  "in 
all  cases  properly  cognizable  by  courts  of  equity,  where 
either  the  title  to  or  boundaries  of  land  may  come  in 
question,  or  where  a  suit  in  chancery  becomes  necessary 
to  obtain  the  rescission  of  a  contract  for  the  conveyance  of 
land,  or  to  compel  the  specific  execution  of  such  contract." 
Acting  under  this  statute,  an  absent  defendant  was  pro- 
ceeded against,  by  publication  of  notice,  to  compel  the 
specific  performance  of  a  contract,  and  to  obtain  judgment 
for  a  sum  of  money  claimed  by  the  plaintiff  under  such 
contract.  The  court  gave  a  decree  for  the  performance, 
and  also  for  the  sum  of  money,  and  autliorized  a  levy  to 
be  made  to  satisfy  the  decree.     The  action  of  the  court 

*  Wright  V.  Leclaire,  3  Iowa,  221. 


§  144  VOID    JUDGMENTS.  260 

in  awarding  the  sum  of  money  was  attempted  to  be  justi- 
fied on  the  ground  that  a  court  having  jurisdiction  for 
one  purpose  might  exercise  it  for  the  complete  settlement 
of  the  matters  in  controversy,  but  such  action  was  declared 
void  for  want  of  jurisdiction  over  the  defendant  for  the 
purpose  of  rendering  a  personal  judgment  against  him 
for  a  sum  of  money. ^  In  the  same  state,  proceedings  were 
instituted  to  foreclose  a  mortgage.  Service  of  summons 
was  made  by  publication.  A  personal  judgment  was 
taken  against  the  defendant.  This  judgment  was  declared 
to  be  absolutely  void,  because  the  statute  did  not  author- 
ize any  other  judgment  than  one  for  the  sale  of  the  prem- 
ises to  satisfy  the  debt  secured  by  the  mortgage.^ 

§  144.  Disqualification  of  the  Judge.  —  It  occasionally 
happens  that  while  a  court  has  jurisdiction  over  the  sub- 
ject-matter in  controversy,  and  the  parties  to  the  action, 
the  judge  of  the  court  is  disqualified  from  acting  by  rea- 
son of  his  having  an  interest  in  the  suit,  or  his  being  re- 
lated to  some  of  the  parties,  or  his  being  within  some  of 
the  disqualifications  recognized  by  the  common  or  by  the 
statute  law.  "It  is  a  maxim  of  every  country  that  no  man 
should  be  judge  in  his  own  cause.  The  learned  wisdom 
of  enlightened  nations,  and  the  unlettered  ideas  of  ruder 
societies,  are  in  full  accordance  upon  this  point,  and  wher- 
ever tribunals  of  justice  have  existed,  all  men  have  agreed 
that  a  judge  shall  never  have  the  power  to  decide  where 
he  is  himself  a  party.  In  England  it  has  always  been 
held  that,  however  comprehensive  may  be  the  terms  by 
which  jurisdiction  is  conferred  upon  a  judge,  the  power  to 
decide  his  own  cause  is  always  a  tacit  exception  to  the 
authority  of  his  office.  Such  I  conceive  to  be  the  law  of 
this  state."'  These  principles  extend  not  only  to  cases  in 
which  the  judge  is  a  party  upon  the  record,  but  also  to 

^  Boswell  V.   Dickerson,  4  McLean,        *  Wash.  Ins.  Co.  v.  Price,  1  Hopk. 
262.  Ch.  1. 

«  Wood».  Stanberry,  21  Ohio  St.  142. 


261  VOID    JUDGMENTS.  §   145 

other  cases  in  which  he  has  an  interest,  however  minute, 
as  where  one  of  the  parties  is  a  corporation  of  which  the 
judge  is  one  of  the  stockholders.^ 

§  145.  At  Common  Law.  —  While  it  is  well  settled  by 
the  common  law  that  no  judge  ought  to  act  where,  from 
interest  or  from  any  other  cause,  he  is  supposed  to  be 
partial  to  one  of  the  suitors,  yet  his  action  in  such  a  case 
is  regarded  as  an  error  or  irregularity  not  affecting  his 
jurisdiction,  and  to  be  corrected  by  a  vacation  or  reversal 
of  his  judgment,  except  in  the  case  of  those  inferior 
tribunals  from  which  no  appeal  or  writ  of  error  lies.^  "If 
the  facts  are  known  to  the  party  recusing,  he  is  bound  to 
make  his  objection  before  issue  joined,  and  before  the 
trial  is  commenced,  otherwise  he  will  be  deemed  to  have 
waived  the  objections,  in  cases  where  a  statute  does  not 
make  the  proceedings  void.  Except  in  cases  where  a 
statute  forbids  it,  the  parties  by  a  joint  application  to  the 
judge,  suggesting  the  ground  of  recusation,  expressly 
waiving  all  objections  on  that  account,  and  requesting 
him  to  proceed  with  the  trial  or  hearing,  signed  by  them, 
or  their  attorneys,  may  give  the  judge  full  power  to  pro- 
ceed as  if  no  objection  existed.  This  is  denominated  in 
civil  and  Scotch  law  prorogated  jurisdiction;  and  a  tacit 
prorogation  is  inferred  against  a  plaintiff  who  brings  his 
cause  before  a  judge  who  is  known  to  him  to  be  dis- 
qualified to  try  it;  and  against  a  defendant,  who,  knowing 
the  existence  of  just  grounds  of  recusation,  appears,  and 
without  objecting  offers  defenses  in  the  cause,  either 
dilatory  or  peremptory."  ^ 

»  Place  V.  Butternuts  Mfg.  Co.,   28  v.  Wriirht,  51  N.  H.  609;  Trawick  v. 

Barb.  50.3;  Gregory  r.  C.  C.  &C.  R.  R,  Trawick,     67    Ala.    271;     Fowler     v. 

Co.,  4  Ohio  St.  675;  Wash.  Ins.  Co.  v.  Brooks,  64  N.  H.  423;  10  Am.  St.  Rep. 

Price,  1  Hopk.  Ch.  I.  425;  Rogers  v.  Feli<er,  77  Ga.  46;  Beal 

^  DimfS   V.    Grand    Junction    Canal  v.  SinqnetieUl,  73  Ga.  48. 

Co.,  47  Jur.  73;   16  Eng.  L.  &  Eq.  63;  »  Moses  v.  Julian,  45  N.  11.  52;  84 

HeydenfeMt  v.   Townw,   27    Ala.   423;  Am.  Dec.  114;  Shropshire  v.  State,  12 

GorriU  V.  Whittier,  3  N.  H.  268:   Mc-  Ark.  160;  Ellsworth  «.  Moore,  5  Iowa, 

Millan  V.  Michols,  62  Ga.   36;   Rhea's  486;    Baldwin   v.    Calkius,   10    Weud. 

Succession,  31  La.  Ann.  323;  Stearns  167. 


§   146  VOID    JUDGMENTS.  262 

§  146.  statutory  Prohibitions.  —  In  most  of  the  states, 
statutes  have  been  passed  which,  in  direct  terms,  prohibit 
judges  from  acting  in  certain  specified  cases.  Thus  in 
Massachusetts,  it  was  provided  that  when  a  judge  of  pro- 
bate was  interested  in  an  estate,  the  same  should  be  set- 
tled in  another  county;  and  in  Alabama,  the  statute 
enacted  that  "no  judge  of  probate  shall  act  in  any  proceed- 
ing or  take  jurisdiction  of  any  matter  wherein  he  is  inter- 
ested." In  both  of  these  states  it  has  been  decided  that 
the  action  of  any  judge  in  any  matter  where  he  is  inter- 
ested is  coram  non  judice  and  void.^  A  statute  in  New 
York  directed  that  "no  judge  of  any  court  shall  act  as 
such  in  any  cause  to  which  he  is  a  party,  or  in  which  he 
is  interested,  or  in  which  he  would  be  disqualified  from 
being  a  juror  by  reason  of  consanguinity  or  affinity  to 
either  of  the  parties."  This  was  held  to  divest  the  judge 
of  jurisdiction  in  the  extreme  sense,  so  that  the  consent 
of  the  parties  could  not  give  him  any  authority  in  the 
case.  "The  party  who  desired  it  might  be  permitted  to 
take  the  hazard  of  a  biased  decision  if  he  alone  were  to 
suffer  for  his  folly;  but  the  state  cannot  endure  the 
scandal  and  reproach  which  would  be  visited  upon  its 
judiciary  in  consequence.  Although  the  party  consent, 
he  will  invariably  murmur  if  he  do  not  gain  his  cause; 
and  the  very  man  who  induced  the  judge  to  act  when  he 
should  have  foreborne  will  be  the  first  to  arraign  his  de- 
cision as  biased  and  unjust.  If  we  needed  an  illustration 
of  this,  the  attempt  which  the  counsel  for  the  moving 
party  in  this  case  assumed  toward  the  court,  the  strain  of 
argument  he  addressed  to  it,  and  the  impression  it  was 
calculated  to  make  upon  an  audience  are  enough  to  show 
that,  whatever  a  party  may  consent  to  do,  the  state  cannot 
afford  to  yield  up  its  judiciary  to  such  attack  and  criticism 
as  will  inevitably  follow  upon  their  decisions  made  in  dis- 

'  Cottle,    Appellant,    5    Pick.    483;     Dec.  248;  Gav  v.  Minot,  3  Cush.  352; 
Coffin  V.  Cottle,  9  Pick.  287;  Sigour-     State  v.  Castleberry,  23  Ala.  85. 
ney  v.  Sibley,  21  Pick.   101;  32  Am. 


263  VOID   JUDGMENTS.  §  146 

regard  of  the  prohibitions  of  the  statute  under  considera- 
tion."^ This  language  shows  in  a  clear  and  forcible 
manner  the  evils  resulting  from  the  practice  of  permitting 
any  judge  to  act  under  any  circumstances  in  a  matter 
wherein  his  judgment  is  likely  to  be  attributed  to  im- 
proper motives.  Nevertheless,  it  is  stipulated,  in  many  of 
the  statutes  upon  this  subject,  that  he  may  act  by  consent 
of  the  parties  interested.  But  the  general  effect  of  the 
statutory  prohibitions  in  the  several  states  is  undoubtedly 
to  change  the  rule  of  the  common  law  so  far  as  to  render 
those  acts  of  a  judge,  involving  the  exercise  of  judicial 
discretion,  in  a  case  wherein  he  is  disqualified  from  act- 
ing, not  voidable  merely,  but  void.^  The  language  of  the 
statutory  prohibition  to  which  this  effect  is  attributed  is, 
generally,  that  the  judge  in  the  eases  mentioned  therein 
"  shall  not  sit,"  or  "shall  not  act,"  or  "shall  not  preside," 
or  "shall  not  have  any  voice,"  or  "cannot  sit."^  In 
some  of  the  states  the  statute  permits  a  judge,  otherwise 
disqualified,  to  act  with  the  consent  of  the  parties,  and 
where  such  statutes  are  in  force  a  party  who  does  not  ob- 
ject to  the  judge  until  after  judgment  is  pronounced  is 
deemed  to  have  consented  to  his  acting.*     But  a  judge 

»  Oakley  v.  Aspinwall,  .3  N.  Y.  547.  their  existence.  It  is  a  serious  thing 
*  Horton  V.  Howard,  79  Mich.  642;  to  annul  the  judgments  of  the  courts, 
19  Am.  St.  Rep.  19S;  Chicago  &  A.  and  it  ought  not  to  be  done  where  the 
R.  R.  Co.  V.  Summers,  113  lud.  10;  3  consent  of  the  parties  alone  is  requisite 
Am.  St.  Rep.  .616;  Newcome  v.  Light,  to  their  validity,  and  its  entry  on  the 
58  Tex.  141;  44  Am.  Rep.  604;  Reams  record  is  the  only  admissible  evidence 
V.  Kearns,  5  Cold.  217;  Converse  v.  that  it  was  given":  Hines  w.  Hussey, 
McArthur,  17  Barb.  410;  Schoon-  45  Ala.  51.3.  Act  of  probate  judge  in 
maker  v.  Clearwater,  41  Barb.  200;  Massachusetts  in  appointing  wife's 
Chambers?;.  Clearwater,  1  Keyes,  310;  brother  administrator  of  estate  of 
Estate  of  White,  37  Cal.  190;  Cham-  which  her  father  was  creditor,  being  a 
bers  V.  Hodges,  23  Tex.  104;  People  v.  case  in  which  the  judge  was  disquali- 
De  la  Guerra,  24  Cal.  73;  Ochus  v.  fied,  was  held  void:  Hall  v.  Thayer, 
Sheldon,  11  Fla.  138.  .  Where  the  105  Mass.  219;  7  Am.  Rep.  513. 
statute  prohibits  the  judge  from  act-  ^  See  cases  in  preceding  citation,  and 
ing  in  certain  cases,  unless  by  consent  Buckingham  v.  Davis,  9  Md.  3-.'4; 
of  the  parties  entered  of  record,  the  Wigand  v.  Dejonge,  8  Abb.  N.  C.  260; 
supreme  court  of  Alabama  in  a  recent  Price  v.  Bowers,  8  Baxt.  353;  New- 
case  said:  "We  think  that  justice  will  come  v.  Likdit,  58  Tex.  141;  44  Am. 
be  best  subserved  by  ruling  that  the  Rep.  604;  Hilton  v.  Mill<»r,  5  Lea,  ,395; 
disabilities  mentioned  render  the  pro-  Horton  ?'.  Howard,  79  Mich.  642;  19 
ceedings  of  the  court  voidable  only,  Am.  St.  Rep.  198;  Frevert  v.  Swift,  19 
and  not  void.     These  disqualifications  Nev.  363. 

may  be  unknown,  or  so  obscure  as  to         *  Wroe    v.     Greer,     2     Swan,     172; 

require  a  judicial  decision  to  determine  Crozier  v.  Goodwin,  1  Lea,  125. 


§  147  VOID    JUDGMENTS.  264 

disqualified  from  trj'ing  a  cause  may  make  such  orders  as 
"are  merely  formal,  or  as  are  necessary  for  the  continu- 
ance of  the  cause  to  a  future  term  at  which  a  qualified 
judge  may  be  present."^  On  this  ground  it  has  been  de- 
cided that  a  judge  who  is  assignee  may,  as  such  assignee, 
confess  judgment  against  himself  in  the  capacity  of 
assignee,  in  his  own  court;  and  that  if  any  judge  is  sued 
in  his  own  court,  there  is  no  objection  to  his  entering 
judgment  against  himself  upon  his  own  confession,  as 
such  entry  does  not  require  any  judicial  investigation 
or  determination.^  Statutory  prohibitions  must  give 
way  to  the  necessities  of  justice,  and  to  the  paramount 
right  of  litigants  to  have  justice  administered.  Hence 
though  a  judge  is  interested  in  a  cause,  or  otherwise  dis- 
qualified, yet  if  there  is  no  other  judge  competent  to  try 
it,  he  may  proceed  to  hear  and  determine  it,  if  his  refusal 
to  do  so  must  result  in  a  total  or  substantial  denial  of 
justice.^ 

§  147.  Where  Two  out  of  Three  Judges  were  disquali- 
fied from  acting,  by  reason  of  having  been  attorneys  in 
the  case,  and  the  parties  stipulated  for  trial  before  a  sin- 
gle judge,  the  judgment  pronounced  by  such  judge,  the 
others  sitting  pro  forma,  in  order  to  constitute  a  court* 
was  held  to  be  valid.'*  The  correctness  of  this  decision  is, 
how^ever,  questionable,  the  general  rule  being  that  if  a 
judge  is  disqualified  he  shall  not  sit;  and  that  a  court  in 
which  he  with  other  judges  participates  is  not  properly 
constituted,  and  its  judgments  ought  not  to  stand.' 

^  Buckinsham  v.  Davis,  9  Md.  324;  if  otherwise  the  cause  cannot  be  tried: 

Heydenfeldt   v.  Towns,    27   Ala.  423;  Bassett  w.  Governor,  11  Ga.  207;  Com- 

Moses  V.  Julian,  45  N.  H.  52;  84  Am.  monwealth  v.  Brown,   147  Mass.  585; 

Dec.  1 14;  Estate  of  White,  37  Cal.  190.  9  Am.  St.  Rep.  736. 

2  Thornton  w.  Lane,  11  Ga.  520.  *  Walker    v.    Rogan,     1    Wis.    597; 

3  Matter  of  Ryers,  72  N.  Y.   1;  28  Queen  v.  Justices  of  London,  18  Q.  B. 
Am.    Kep.   88;    Heydenfelt  v.  Towns,  421. 

27  A1a.  423;  Commonwealth  v.  Ryan,  ^  Oakley  v.  Aspinwall,  3  N.  Y.  547; 

5  Muss.    92;    Pierce    v.    Atwood,    13  Gorrill  w.  Whittier,  3  N.  H.  2G8:  Hes- 
Mdss.  340;  Thellnson  ?'.   Rendlesham,  keth  v.  Braddock,  8  Burr.  1847;  Queen 

6  H.    L.    Cas.  429.     The  same   prin-  v.  Justices  of  Hertfordshire,  6  Q.  B- 
ciple  permits  disqualified  jurors  to  act,  753. 


265  VOID    JUDGMENTS.  §  148 

§  148.  Judge  de  Facto.  —  One  who  supposes  himself  to 
he  invested  with  an  office,  and  who,  not  heing  a  mere 
usurper,  acts  in  good  faith  as  a  judge,  may  constitute  a 
court  de  facto.  An  objection  to  his  authority  or  commission 
must  be  made  before  the  trial,  or  it  will  be  disregarded.' 
Where  the  constitution  of  a  state  required  a  judge  to  be 
thirty  years  of  age,  it  was  decided  that  if  the  appointing 
power  selected  some  person  as  a  judge  who  was  less  than 
thirty  years  old,  his  acts  were  valid  until  he  was  removed 
from  office.^  The  authority  of  a  judge  de  facto  cannot  be 
called  in  question  collaterally.  His  title  to  the  office  can 
be  considered  and  determined  only  in  some  proceeding 
instituted  for  that  purpose.*  Hence  the  judgment  of  a  de 
facto  court  or  judge  must  be  respected  as  valid  in  all  col- 
lateral proceedings,  though  the  official  term  of  the  person 
acting  as  judge  had  not  yet  begun,^  or  had  terminated,^  or 
the  statute  authorizing  him  to  act  or  providing  the  mode 
of  his  appointment  is  unconstitutional,®  or  he  is  acting 
under  an  appointment  by  officers  having  no  power  to 
make  such  appointment,''  or  as  the  officer  of  a  sovereign 
whose  authority  over  the  territory  has  ceased.^  Where 
special  judges  may  be  appointed  to  act  in  place  of  the 
regularly  elected  and  qualified  judge,  if  a  judgment  ap- 
pears to  have  been  rendered  by  a  special  judge  it  cannot 
be  collaterally  assailed,  unless  the  record  affirmatively  dis- 
closes his  want  of  authority.' 

1  Case  V.  state,    5   Ind.    1;  State  v.  '  Gilliani  v.   Reddick,  4  Ired.  368; 

Anone,    2    Nott   &    McC.    27;    State  Carli  v.  Rheuer,  27  Minn.  292;  Cromer 

V.  Ailing,    12  Ohio,   16;    Masterson   v.  v.   Boinest,    27   S.    C.    436;    Sheehan's 

Matthews,  60  Ala.  260.    See  Hildreth's  Case,  122  Mass.  445;  23  Am.  Rep.  374; 

Heirs  v.    Mclntyre's  Devisee,    1  J.  J.  Hamlin  v.  Kassafer,  15  Ov.  456;  3  Am. 

Marsh.  206;  19  Am.  Dec.  61,  and  note,  St.  Rep.  176. 

at  page  66,  on  officers  de  facto.  ®  State  v.   Carroll,  38  Conn.  449;  9 

=*  Blackburn  v.  State,  3  Head,  690.  Am.   Rep.    409;    Burt   v.   Winona,    31 

8  Pepin   V.  Lachenmeyer,    45   N.  Y.  Minn.  472;  Masterson  v.  Matthews,  60 

27;  State    v.   Murdock,    86   Ind.    124;  Ala.  260;  Brown  z;.  O'Connell,  .36  Conn. 

Wilcox   V.    Smith,   5  Wend.    231;    21  432;  4  Am.  Rep.  89;  Frazer  t;.  Freelon, 

Am.  Dec.  213;  Woodside  v.  Wagg,  71  53  Cal.  644. 

Me.  207;  Keyes  v.  United  States,  109  '  Malletb  v.  G.  &  S.  M.  Co.,  1  Nev. 

U.  S.  .336;  J..hnson  v.  McGinly,  76  Me.  188;  90  Am.  Dec.  484. 

432;  Campbell  ?\    Commonwealth,    96  ^  Keene     v.     McUonough,     8     Pet. 

Pa.  St.  344;  Baker  v.  Wambaugh,  99  308. 

Ind.  312.  "Littleton  v.  Smith,   119  Ind.   230; 

«  McCrawi;.  Williams,  33  Gratt.  510.  Schiuugger  v.  State,  113  Ind.  295, 


I  148  a  VOID   JUDGMENTS.  266 

§  148  a.  Judgment  Fraudulently  Altered,  —  The  clerk 
of  a  court,  at  the  instance  of  a  judgment  creditor, 
altered  a  judgment  by  default  from  four  thousand  four 
hundred  to  four  thousand  five  hundred  dollars.  This 
judgment,  having  subsequently  been  collaterally  drawn 
in  question,  was  held  to  be  void,  in  an  opinion  from  which 
we  present  the  following  extract:  "We  admit  that  we  have 
been  unable  to  find  any  reported  authority  precisely  ap- 
plicable to  this  case;  but  we  are  clearly  of  the  opinion 
that  the  doctrine  uniformly  held,  which  renders  void  a 
note,  bond,  or  bill  which  has  been  altered  in  a  material 
part  by  the  party  in  whose  interest  the  alteration  has 
been  made  must  apply  with  equal,  if  not  greater,  force  to 
judgments  in  courts  of  record.  In  most  of  the  states  the 
act  of  altering  a  public  record,  we  think,  would  not  only 
be  held  to  render  void  any  interest  the  party  making  the 
fraudulent  alteration  might  have  in  the  record,  but  it 
would  be  an  indictable  offense.  We  do  not  hesitate,  then, 
to  say  that  the  judgment  was  void  from  and  after  the  al- 
teration." ^ 

'  Hardy  v.  Broaddus,  35  Tex.  668. 


267  OF    THE    PERSONS    AFFECTED    BY    JUDGMENT.       §  149 

CHAPTER  IX. 

OF  THE  PERSONS  AFFECTED  BY  JUDGMENT. 

Part  I.  —  OF  THE  PARTIES. 

§  149.  All  persons  competent  to  be  parties  to  judgment. 

§  150.  Married  women. 

§  151.  Infants. 

§  152.  Lunatics. 

§  153.  Deceased  persons. 

§  154.  Judgment  binding  only  on  the  parties  to  it. 

§  155.  General  expressions  confined  to  parties  before  the  court. 

§  156.  Parties  must  be  in  same  capacity. 

§  157.  Parties  bound,  though  not  named  in  the  record,  if  numerous. 

§  158.  Must  be  adversary  parties. 

§  159.  Must  be  mutually  bound. 

§  160.  When  second  suit  does  not  include  all  the  parties  to  the  first  suit. 

§  161.  When  second  suit  includes  other  parties. 

Part  II.  —  OF  PRIVIES. 
§  162.     Privity. 

§  163.  Administrators  or  executors,  and  heirs  or  devisees. 

§  163  a.     Administrators  or  executors,  statutes  modifying  relation  of,  to  heirs. 

§  164.  Principals  and  agents. 

§  165.  Assignees  and  assignors. 

§  166.  Bailors  and  bailees. 

§  167.  Garnishees. 

§  168.  Heirs  and  ancestors. 

§  169.  Lessors  and  lessees. 

§  170.  Successors  and  predecessors  in  office. 

§  171.  Tenants  in  ejectment, 

§  172.  Remaindermen. 

§  173.  Trustees  and  cestuis  que  trust. 

Part    III.  —  OF    PERSONS    BOUND,  THOUGH    NEITHER    PARTIES 

NOR  PRIVIES. 
§  174.     Persons  bound,  who  are  neither  parties  nor  privies. 
§  175.     Evidence  to  show  who  are  the  real  parties  in  interest. 
§  176.     Parties  who  are  bound  by  judgment  against  another  without  notice. 
§  177.     Corporations  and  stockholders. 

§  178.     Counties  and  municipal  corporations,  and  their  tax-payers  and  citizens. 
§  179.     Masters  and  servants. 
§  180.     Principals  and  sureties. 
§  181.     Of  the  notice  required  to  be  given  a  party  to  whom  a  litigant  may  r&» 

sort  for  indemnity. 
§  182.     Attachment  proceedings. 


§  149   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     268 

§  183.  Bailees  and  bailors. 

§  184.  Officers  and  their  indemnitors. 

§  185.  Tenant  and  landlord. 

§  186.  Vendee  and  vendor. 

§  187.  Warrantee  and  warrantor. 

§  188.  Parties  who  cannot  be  called  on  to  conduct  suit. 

§  189.  Persons  not  parties  to  suit  not  bound  by  reason  of  participating  therein. 

§  190.  Distributee  of  common  fund. 

Paet  I.  —  OF  THE  PARTIES. 

§  149.  Who  may  be  Parties.  —  The  power  and  author- 
ity of  our  courts  extend  over  every  class  of  persons  and 
every  species  of  property  situate  within  the  territorial 
limits  in  which  those  courts  are  authorized  to  act,  and 
subject  to  the  same  sovereignty  which  organized  the  courts 
and  invested  them  with  judicial  functions.  Every  sub- 
ject is  therefore  liable  to  be  made  a  party  litigant,  and  to 
be  bound  by  the  result  of  the  litigation;  and  those  who 
are  not  subjects  may,  if  they  choose,  appear  and  submit 
to  the  jurisdiction  of  a  court,  and  after  so  doing,  its  judg- 
ment is  as  binding  upon  them  as  upon  residents.*  If  a 
citizen  or  resident  is  privileged  from  the  service  of  pro- 
cess at  the  time  it  is  served  upon  him,  the  court  cannot 
take  notice  of  such  privilege.  He  must  appear  and  as- 
sert it  by  some  motion  or  other  proceeding;  and  failing 
to  do  so,  and  even  if  he  did  so  and  the  court  overruled 
his  plea,  its  judgment  against  him  is  valid.''  The  convic- 
tion of  a  person  for  crime,  and  his  sentence  to  imprison- 
ment for  life,  are  often  spoken  of  as  resulting  in  his  civil 
death,  and  the  inference  is  drawn  that  he  can  no  longer 
do  any  act  or  be  proceeded  against  in  the  courts.  This, 
we  think,  is  a  mistaken  view.  While  his  conviction  and 
sentence  suspend  many  of  his  civil  rights,  they  do  not 
seem  to  destroy  his  obligations,  nor  to  vest  his  estate  in 
bis  heirs;  and  this  being  so,  it  must  follow  that  those  hav- 
ing obligations  against  him  must  be  permitted  to  enforce 

1  Theriotv.  Bayard,  37  La.  Ann.  689.  Gyers  v.  Irwin,  4  Dall.  107;  MoPher- 

2  Preutis  ?\  Commonwealth,  5  Rand,  sou  v.  Nesmitli,  3  Gratt.  241;  Thora- 
697;  16  Am.  Dnc.  782;  Peters  v.  ton  v.  American  W.  M.  Co.,  83  Ga. 
League,  13  Md.  58;  71  Am.  Dec.  622;  2SS;  20  Am.  St.  Rep.  320. 


269  OF    THE    PERSONS    AFFECTED    BY    JUDGMENT.       §   150 

them  in  the  courts.  To  hold  otherwise  would  be  to  pun- 
ish them  for  his  crime.'  In  Kansas,  when  one  is  impris- 
oned for  a  term  less  than  life,  a  trustee  may  be  appointed 
to  take  charge  of  and  manage  his  estate,  who  may  prose- 
cute and  defend  all  actions  commenced  by  or  against 
him,  and  the  courts  of  that  state  have  declared  that  though 
an  action  has  been  begun  while  the  defendant  w^as  not  a 
convict,  yet  on  his  subsequent  conviction  and  imprison- 
ment he  became  civilly  dead,  and  that  a  judgment  based 
on  a  service  of  process  on  him  in  prison  was  void.^  In 
Virginia,  under  similar  circumstances,  the  judgment  is 
valid. ^ 

§150,  Married  Women.  —  Those  disabilities  arising 
from  infancy,  from  coverture,  or  from  mental  infirmities 
which  render  parties  incapable  of  being  bound  by  their 
contracts  do  not  have  the  effect  of  exempting  any  person 
from  the  control  of  the  courts.  Reasoning  from  the 
hypothesis  that  a  judgment  is  a  contract,  a  few  of  the 
courts  have  held  that  parties  exempt  from  the  force  of 
their  agreements  could  not  be  bound  by  a  judgment. 
Thus  it  was  said  in  one  case:  "The  fact  that  defendant 
was  a  married  woman  when  the  judgment  was  rendered 
against  her  would  alone  be  a  good  plea  to  this  action. 
A  judgment  is  in  the  nature  of  a  contract;  it  is  a  specialty, 
and  creates  a  debt,  and  to  have  that  effect,  it  must  be 
taken  against  one  capable  of  contracting  a  debt,"*  The 
case  just  cited  sustains  the  doctrine  that  a  married  woman 
may,  when  sued  upon  a  claim  arising  during  coverture, 
disregard  the  process  of  the  court,  and  assert  against  any 
judgment    rendered   thereon    the    defense    of   coverture 

1  Avery  v.  Everett,  110  N.  Y.  317;  587.  In  Wood  v.  Warrl,  8  Cent.  L.  J. 
6  Am.  St.  Rep.  308,  and  note;  Bowles  188,  in  the  circuit  court  of  the  United 
V.  Haberman,  95  N.  Y.  246.  States  for  the  southern  district  of  Ohio, 

2  liice  Co.  V.  Lawrence,  29  Kan,  it  was  ailjudged  that  a  judgment 
J5S.  against  one  wlio  was  a  shive,  and  who, 

*  Neale  v.  Utz,  75  Va.  480.  therefore,    in    the    state    where    such 

*  Morse  u  Toppan,  3  Gray,  411;l)ut  judgment  was  entered,  had  no  capa- 
the  rule  in  this  state  has  been  modified  city  to  sue  or  defend,  could  not  con- 
by  statute:  Larrabee  v.  Colby,  99  elude  such  person  in  any  subsequent 
Mass.  55i);  Goodman  v.  Hill,  125  Mass.  judicial  proceeding. 


g  150   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     270 

which  was  available  to  her  as  before  the  judgment.  A 
judgment  agafnst  a  feme  covert  upon  a  note,  made  during 
her  coverture,  was  also  deemed  a  nullity  in  Maryland. 
The  principle  that  a  party  cannot  impeach  a  judgment 
on  any  ground  which  might  have  been  pleaded  as  a  de- 
fense, it  was  thought  had  no  application  to  such  a  case, 
because  the  defendant  was  not  competent  to  employ  an 
attorney  to  present  her  plea.^  The  decision  thus  made  in 
Maryland,  though  it  no  longer  correctly  expresses  the  law 
of  that  state,'^  has  been  approved  in  Missouri,  and  the  rea- 
sons for  such  approval  were  expressed  in  the  following 
form:  "It  is  very  clear,  to  my  mind,  that  the  respondent 
was  not  competent  to  employ  an  attorney,  or  make  a  de- 
fense in  her  own  name.  She  was  sued  in  a  legal  proceed- 
ing upon  a  personal  contract  altogether  void  at  law;  and 
shall  the  entry  of  an  unauthorized  judgment  against  her 
by  default  for  non-appearance  be  allowed  to  prejudice 
her?  The  principle  that  a  party  cannot  impeach  a  judg- 
ment in  a  collateral  proceeding  does  not  apply  to  a  case 
where  the  defendant  is  a  feme  covert,  and  not  sui  juris.  As 
the  respondent  labored  under  a  total  disability,  and  could 
neither  contract  nor  be  sued  at  law,  I  think  the  judgment 
of  the  law  commissioner's  court  was  void."'  The  spirit* 
of  the  decisions  in  Pennsylvania,  Mississippi,  Louisiana, 
Kentucky,  and  West  Virginia  is,  no  doubt,  in  accord  with 
that  manifested  in  Missouri.  In  the  first-named  state,  a 
wife  is  liable  upon  certain  contracts  made  in  reference  to 
the  improvement  of  her  separate  estate.  Upon  these  con- 
tracts she  may  be  sued,  and  a  valid  judgment  may  be 
rendered  against  her.  But  "  every  judgment  against  her 
which  does  not  show  upon  its  face  her  liability  is  a  void 

>  Griffith  V.  Clarke,  18  Md.  457.  Parham,  52  Mi'ss.  921;  White  v.  Bird, 

*  Sluipp  V.  Hoffman,  72  Md.  359;  20  20  La.  Ann.  i.81;  Parsons  v.  Spencer, 
Am.  St.  Rep.  47l);  Ahern  v.  Fink,  18  83  Ky.  305,  and  on  subsequent  aripeal. 
Mil.  457;  Lowekanip  v.  Koecbluig,  64  13  S.  W.  Rep.  72  (Ky.) ;  Wells  v. 
Md.  95.  Norton,  28  La.  Ann.  300;  Magruder©. 

*  Higsins  V.  Peltzer,  49  Mo.  152;  Buck,  56  Miss.  3)4;  Hecker  v.  Haak, 
Will  V.  Simmons,  66  Mo.  617.  88  Pa.  St.  238;  Gould  v.  McFalL  111 

*  White  V.  Foote  L.  Co  ,  29  W.  Va.  Pa.  St.  66. 
385;  6  Am.  St.  Rep.  650;  Mallett  v. 


271  OP    THE    PERSONS    AFFECTED    BY    JUDGMENT.       §  150 

judgment."^  This  is  the  rule  generally  adopted  in  the 
states  wherein  common-law  judgments  against  married 
women  are  ordinarily  void.  If  circumstances  exist  mak- 
ing such  judgment  proper,  they  must  be  disclosed  by  the 
record,^  unless  recovered  before  a  justice  of  the  peace, 
when  in  some  of  the  states  the  well-known  imperfections 
of  justices'  records  have  induced  the  courts  to  relax  the 
rule  requiring  the  record  to  show  the  exceptional  facts 
justifying  a  recovery  against  a  married  woman.^  If  an 
unmarried  woman  is  sued,  her  subsequent  marriage  does 
not  abate  the  action,  nor  prevent  the  recovery  of  a  valid 
judgment  against  her  therein.'* 

Notwithstanding  the  decisions  to  which  we  have  re- 
ferred, the  preponderance  of  authority  is  in  favor  of  the 
rule  that  a  judgment  against  a  married  woman  is  not  void; 
and  that  when  erroneous  because  based  upon  a  contract 
which  she  was  not  competent  to  make,  or  from  any  other 
reason,  it  is  still  binding  upon  her  until  set  aside  upon 
appeal  or  by  some  other  appropriate  method.  "The  acts 
of  femes  covert  in  pais  may  be,  and  frequently  are,  void; 
yet  this  does  not  impair  the  conclusive  force  of  judgments 
to  which  they  are  parties;  and  if  they  be  not  reversed  on 
error  or  appeal,  their  effects  cannot  be  gainsaid  when 
they  are  enforced  by  ultimate  process,  or  when  they  are 
brought  to  bear  on  their  rights  in  any  future  controversy. 
And  a  judgment  against  husband  and  wife  may  be  satis- 
fied out  of  the  property  of  either,  or  out  of  the  common 
property."^     "There  would  be  no  safety  in  purchasing  at 

'  Swayne  v.  Lyon,  67  Pa.  St.  439;         »  Howard  v.  North,  5  Tex.  290;  51 

Caldwell  V.  Walters,  18  Pa.  St.  79;  55  Am.  Dee.  7(59;  Baxter  ?>.  Dear,  24  Tex, 

Am.    Dec.    592;    Dorrance  v.   Scott,   3  17;     76    Am.    Dec,    88;    Siialdinn;    v. 

Whart.   309;  31    Am.    Dec.    509;  Van  Watlien,    7    Bush,    659;     Guthrie    v. 

Dyke  v.  Wells,    103  Pa.  St.  49;  Hart-  Howard,   32  Iowa,   54;    Wolf   v.   Van 

maa  v.  Oghorn,   54   Pa,    St.    120;   93  Metre,  23  Iowa,  397;  Glover  v.  Moore, 

Am.  Dec.  079.  60   Ga.    189;  Masliburn   v.  Gouge,   61 

i*  McKinney  v.  Brown,   130  Pa.  Sfc,  Ga.  512;    McCullough  v.  Dasliiell,  85 

365;  Gary  v.  Dixon,  51  Miss.  593.  Va.  37;  Giiatterton  v.  Young,  2  Tenn. 

»TaCT"ertw.  Muse,  60  Miss.  870.  Ch.  768;  Howfll  v.  Hale,  5   Lea,  405; 

♦King  V.  Jones,  2  Ld.  R;iym.  1525;  Wri.L'ht  v.  Wright,   97  Ind.   44-4;   Mc- 

Doe  V.    Butcher,    3   Maule  &    S.    557;  Daniel  v.  Carver,  40  Ind.  250;  Lieb  v. 

Phillips  w.  Stewart,  27  Ga.  402;  Roose-  Lichteustein.  121    Ind.  483;  Vatdburg 

velt  V.    Dale,   2  Cow.   581;    Parker  v.  v.  Black,  3  Mont.  459;  Keith  ».  Keith, 

Steed,  1  La.  206.  26  Kan,  26;  Vick  v.  Pope,  81  N.  C.  22; 


§  150   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     272 

judicial  sales  under  judgments  rendered  after  due  service 
of  process  on  female  defendants,  if  the  title  of  the  pur- 
chaser could  be  defeated  by  proof  in  a  collateral  action 
that  the  defendant  in  the  judgment  was  a  married  woman 
at  the  time  of  the  institution  of  the  suit,  or  that  she  was 
incapable  in  law  of  contracting  the  debt  for  which  the 
judgment  was  rendered."^  Where  a  mortgage  was  made 
by  a  woman,  in  her  maiden  name,  five  days  after  her 
marriage,  and  scire  facias  was  thereafter  regularly  prose- 
cuted against  her  on  the  mortgage  to  judgment,  and  a 
sale  was  had  in  pursuance  thereof,  it  was  held  that  the 
judgment  could  not,  in  an  action  of  ejectment,  be  im- 
peached by  proof  of  her  coverture.^  Judgments  against 
femes  covert  cannot  be  set  aside  or  enjoined  in  equity, 
without  establishing  such  facts  as  would  entitle  the  appli- 
cant to  relief  independent  of  the  fact  of  coverture,  with 
the  exceptions  of  judgments  shown  to  have  been  obtained 
through  the  fraud  of  the  husband,  in  combination  with 
another  person.  It  is  not  enough  that  a  married  woman 
prove  facts  sufficient  to  have  avoided  the  judgment  in  the 
first  instance.  She  must  allege  and  establish  that  she 
was  deprived  of  a  full  defense  by  the  contrivance  of  her 
adversary.  The  inaction  of  her  husband  will  not  sustain 
the  charge  of  connivance.^  Ignorance  of  her  legal  rights, 
on  account  of  which  a  feme  covert  failed  to  make  her 
defense  at  law,  will  not  entitle  her  to  relief  in  equity.*  lu 
Pennsylvania,  the  bond  of  a  married  woman,  though  hei 
husband  join  in  it,  is  void.  A  judgment  entered  on  such 
bond  by  warrant  of  attorney  is  void;  and  so  is  the  judg- 

Nicholson  v.   Cox,    83    N.  C.    44;    35  N.  J.  L.  456;  32  Am.  Rep.  243;  Pat- 
Am.  Rep.  556;  Winter  v.  City  Couu-  rick  v.  Littell,  36  Ohio  St.  79;  .38  Am, 
cil,  79  Ala.  481.    Some  of  the  decisions  Rep.  552;  Rogers  w.  Weil,  12  Wis.  664; 
■were  doubtless  influenced  by  statutes  Lewis  v.  Gunn,  63  Ga.  542;  Cashmaa 
permittino  married  women  to  sue  and  f.  Henry,  75  N.  Y.  103;  31  Am.  Rep. 
be  sued:  ^Huff  v.  Wright,  39  Ga.  41;  437;  Farris  v.  Hayes,  9  Or.  81. 
Van    Metre   v.   Wolf,    27    Iowa,    341;  '  Gambette  ?;.  Brock,  41  Cal.  83. 
Larrabee  ?'.  Colby,  99  Mass.  559:  Good-  *  Hartman   v.    Ogborn,    54   Pa.   St. 
now  V.  Hill,   125   Mass.  587;  Dhvis  w.  120;  93  Am.  Dec.  679. 
First  Nat.  Bank,  5  Neb.  242;  25  Am.  ^  Green  v.  Branton,  1  Dev.  Eq.  500. 
Rep.    484;     Wilson    v.    Herbert,    41  *  Van  Metre  v.  Wolf,  27  Iowa,  341. 


273     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  151 

ment  in  scire  facias  to  revive  such  judgment,  and  a  sale 
thereunder  passes  no  title/ 

§  151.  Infants.  —  In  Illinois,  a  decree  of  a  court  of 
general  jurisdiction,  where  the  record  shows  that  notice 
was  served  on  an  infant  defendant  in  person,  instead  of 
on  his  guardian  as  required  by  statute,  and  no  guardian 
ad  litem  was  appointed,  is  void.'^  This  is,  however,  an 
almost  isolated  exception  to  the  current  of  authorities. 
In  Kentucky,  by  the  provisions  of  the  Civil  Code,  no 
judgment  is  to  be  rendered  against  an  infant  until  after 
defense  by  a  guardian.  Yet  a  judgment  pronounced  after 
constructive  service  on  an  infant,  without  the  appointment 
of  any  guardian,  was  held  to  be  erroneous,  but  binding 
until  reversed.^  The  general  tendency  is  to  regard  the 
plea  of  infancy  as  a  personal  plea  w'hich  may  be  waived.'* 
And  w^hether  such  plea  is  interposed  or  not,  a  judgment 
or  decree  against  an  infant,  properly  before  the  court,  is 
as  obligatory  upon  him  as  though  he  were  an  adult,  ex- 
cept in  cases  where  he  is  allowed  time,  after  coming  of 
age,  to  show  cause  against  the  judgment  or  decree."  If  an 
absolute  decree  is  made  against  an  infant,  he  is  as  much 
bound  as  a  person  of  full  age,  and  will  not  be  permitted 
to  dispute  the  decree,  except  upon  the  same  grounds 
which  would  be  available  if  he  were  an  adult.^  Though 
the  statute  requires  the  appointment  of  a  guardian  ad  litem 
to  represent  the  interests  of  minors  wdio  have  no  general 
guardian,  it  is  well  settled  that  wdiere  process  has  been 

»  Dorrance  v.  Scott,  3  Whart.  309;  2  Schoales  &  L.  575;  Porter  v.  Robin- 

31  Am.  Dec.  509;  Caldwell  w.  Walters,  son,  3  A.  K.  Marsh.  254;  13  Am.  Dec. 

18  Pa.  St.  79;  55  Am.  Dec.  592;  Graham  153;  Wills  v.  Spraggin,  3  Gratt.  5C7; 

V.  Long,  65  Pa.  St.  383.  Smith  v.  McDonald,  42  Cal.  484. 

2  Whitney  v.  Porter,  23  111.  445.  « Joyce  v.  McAvoy,  31  Cal.  273;  89 

'  Simmons  v.  McKay,  5  Bush,  25.  Am.   Dec.   172;    English  v.   Savage,  5 

*  Blake  v.  Douglass,  27  Ind.  416.  Or.  518;  Brown  v.  Lawson,  51  Cal."  615; 

*  Waring's  Heirs  v.  Reynolds,  3  B.  Wdhite  v.  Wilhite,  124  Ind.  226;  Law- 
Mon.  59;  Marshall  v,  Fisher,  1  Jones,  son  v,  Moorman,  85  Va.  8S0;  Suniuer 
111;  Pond  V.  Doneghy,  18  B.  Mon.  v.  Sessoms,  94  N.  C.  .371;  Burgess  v. 
558;  Smith  v.  Ferguson,  3  Met.  (Ky.)  Kirby,  94  N.  C.  575;  Walkcnhurst  v. 
424;  Ralston  v.  Lahee,  8  Iowa,  23;  Lewis,  24  Kan.  420;  Sites  c.  Eldrcdge, 
Beeler  v.  Bullitt,  3  A.  K.  Marsh.  280;  45  N.  J.  Eq.  632;  14  Am.  St.  Rep. 
13  Am.  Dec.  101;  Bennett  v.  Hamill,  769. 

JUDG.  I.  — 18 


§  151   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     274 

served  upon  a  minor  the  failure  to  appoint  a  guardian 
ad  litem  for  him  is  a  mere  irregularity  not  affecting  the 
validity  of  the  judgment/  The  fact  that  defendant  is  a 
minor  does  not,  however,  ordinarily  dispense  with  the 
necessity  of  obtaining  jurisdiction  over  his  person  by 
the  service  of  process  in  substantial  compliance  with  the 
statute.  The  general  rule  is,  that  neither  a  minor  nor  his 
guardian  can  waive  such  service,  unless  authorized  to  do 
so  by  some  statute.^  In  some  of  the  states  it  seems  that 
when  the  proceedings  are  in  chancery,  or  in  courts  hav- 
ing jurisdiction  of  the  estates  of  deceased  persons,  the 
courts  regard  themselves  as  possessing  general  jurisdiction 
over  all  infants,  or  as  proceeding  in  rem,  and  therefore 
authorized  to  proceed,  when  infants  are  parties  defend- 
ant or  otherwise  interested  in  the  action  or  proceeding, 
without  any  service  of  process  upon  them,  to  appoint 
guardians  ad  litem  for  them,  and  thereafter  to  dispose  of 
the  cause  and  enter  a  final  order  or  decree  binding  upon 
them.^  Generally,  however,  service  of  process  upon  a 
minor  must  precede  the  appointment  of  a  guardian  ad 
litem  for  him;  and  though  such  guardian  is  appointed,  and 
appears  and  represents  the  interests  of  an  infant  defend- 
ant, his  appointment  and  all  subsequent  proceedings,  in- 
cluding the  final  judgment,  are  void  as  against  an  infant 
not  served  with  process.*  In  California,  if  a  minor  de- 
fendant has  a  general  guardian,  the  latter  may  enter  his 

1  Millard  v.  Marmon,  116  111.  649;  ^  Sheldon's  Lessee  v.  Newton,  3 
Eisenmeno-er  v.  Murphy,  42  Minn.  84;  Ohio  St.  494;  Heroman  v.  Louisiana 
18  Am.  St°  Rep.  493;  Peak  v.  Shasted,  Inst.,  34  La.  Ann.  805;  Robb  v.  Irwin, 
21  111.  137;  74  Am.  Dec.  83;  Powell  v.  15  Ohio,  689;  Preston  v.  Dunn,  25  Ala. 
Gott,  13  Mo.  458;  53  Am.  Dec.  153;  507;  McAnear  v.  Epperson,  54  Tex. 
Parker  v.  Starr,  21  Neb.  686;  Porter  v.  220;  38  Am.  Rep.  625. 

Robinson,  3  A.  K.  Marsh.  253;  13  Am.  «  Galpin    v.    Page,     18   Wall.    350; 

Dec.    153;   O'Hara  v.    McConnell,   93  Kremer     v.     Haynie,     67    Tex.    450; 

U.  S.   150;  Barber  v.  Graves,   18  Vt.  Chambers  u.  Jones,  72111.  275;  Moore 

290;  Montgomery  v.  Carlton,  56  Tex.  v.  Starks.  1  Ohio  St.  369;  Good  v.  Nor- 

561;  Boyd  v.  Roane,  49  Ark.  397.  ley,  28  Iowa,   188;  Roy  v.  Rowe,  90 

2  Genobles  v.  V\^est,  23  S.  C.  154;  Ind.  54;  Insurance  Co.  v.  Bangs,  103 
Young  V.  Young,  91  N.  C.  359;  Win-  U.  S.  435;  McCloskey  v.  Sweeney,  66 
Eton  V.  McLendon,  43  Miss.  254;  Abdil  Cal.  53;  IngersoU  v.  Mangram,  84 
V.  Abdil,  26  Ind.  287;  Fiuley  v.  Robert-  N.  Y.  622;  Young  v.  Young,  91  N.  C. 
son,  17  S.  C.  435;  Kansas  City  v.  359;  Coleman  u  Coleman,  3  Dana,  398; 
Campbell,  62  Mo.  585;  Cox  v.  Story,  28  Am.  Dec.  86;  Allsmiller ».  Freutche- 
80  Ky,  64.  nicht,  86  Ky.  198. 


275  OF   THE    PERSONS    AFFECTED    BY   JUDGMENT.       §  153 

appearance  without  any  service  of  process,  and  a  judg- 
ment based  thereon  is  valid.^ 

§152.  Lunatics.  —  While  an  occasional  difference  of 
opinion  manifests  itself  in  regard  to  the  propriety  and 
possibility  of  binding  femes  covert  and  infants  by  judicial 
proceedings  in  which  they  were  not  represented  by  some 
competent  authority,  no  such  difference  has  been  made 
apparent  in  relation  to  a  more  unfortunate  and  more 
defenseless  class  of  persons;  but  by  a  concurrence  of  judi- 
cial authority,  lunatics  are  held  to  be  within  the  jurisdic- 
tion of  the  courts.^  Judgments  against  them,  it  is  said, 
are  neither  void  nor  voidable.  They  cannot  be  reversed 
for  error  on  account  of  defendant's  lunacy;  the  proper 
remedy  in  favor  of  a  lunatic  being  to  apply  to  chancery 
to  restrain  proceedings,  and  to  compel  plaintiff  to  go  there 
for  justice.'  In  a  suit  against  a  lunatic,  the  judgment  is 
properly  entered  against  him,  and  not  against  his  guar- 
dian. A  lunatic  has  capacity  to  appear  in  court  by  attor- 
ney. The  legal  title  to  his  estate  remains  in  him,  and 
does  not  pass  to  his  guardian.  A  judgment,  to  be  effect- 
ive, cannot  therefore  be  against  any  other  person  than 
the  lunatic* 

§153.  Deceased  Parties.  —  The  decisions  respecting 
the  effect  of  judgments  for  or  against  persons  who  were 
not  living  at  the  time  of  their  rendition  are  conflicting 
and  unreasonable.  Some  of  them  apparently  affirm  that 
a  judgment  so  rendered  is  void  under  all  circumstances,' 

^  Smith  V.   McDonald,  42  Cal.  484;  Robinson,  33  Me.   114;   54  Am.  Dec. 

Gronfier  v.  Puymirol,  19  Cal.  629.  614;  Woods  v.  Brown,  93  Ind.  1G4;  47 

2  Lamprey   v.   Nudd,    9   Fost.    299;  Am.  Rep.  369. 

Wood  V.  Bayard,  63  Pa.  St.  320;  Foster  ^  gtej-nberg  i>.  Schoolcraft,  2  Barb. 

V.  Jones,  23  Ga.  168;  Sacramento  Sav-  153;  Robertson  w.  Lain,  19  Wend.  650; 

ings   Bank  v.    Spencer,   53   Cal.   737;  Clark  v.  Dunham,  4  Denio,  262. 

Stigers  v.  Brent,  50  Md.  214;  33  Am.  *  Walker  v.  Clay,  21  Ala.  797. 

Rep.  317;  10  Cent.  L.  J.  473;  Johnson  *  Nolan  v.  Cameron,  9  Lea,  234;  Ge- 

V.  Pomeroy,    31    Ohio  St.    247;  Crow  rault  v.  Anderson,  Walk.  (Miss.)  30;  12 

V.  Meyersieck,   85  Mo.    411;  Boyer  v.  Am.  Dec.  521;  Wert  v.  Jordan,  62  Me. 

Berryman,     123    Ind.     451;    Dunn    v.  484;   Lee    v.   Gardner,    26    Miss.    521; 

Elliott,  60  Tex.  337;  Brittain  v.  Mull,  Parker  v.  Home,  38  Miss.  215;  Tarle- 

99   N.   C.    483;    Allison   v.   Taylor,    6  ton  v.   Cox,   45  Mi.ss.   430;  Young  v. 

Dajia,  87;  32  Am.  Dec.  68;   King  v.  Pickens,  45  Miss.  553;  New  Orleans  & 


§  153   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     27S 

and  others  that  it  is  valid  under  all  circumstances,  be- 
cause its  rendition  implies  that  the  parties  for  and  against 
whom  it  was  given  were  then  living,  and  that  to  show 
that  either  was  then  dead  is  to  dispute  the  verity  of  the 
record,  and  therefore  not  permissible.*  We  apprehend 
that  neither  position  is  correct.  That  there  should,  at 
some  time  during  its  progress,  be  living  parties  to  both 
sides  of  an  action  we  think  indispensable;  and  that  no 
sort  of  jurisdiction  can  be  obtained  against  one  who  was 
dead  when  suit  was  commenced  against  him  as  a  defend- 
ant, or  in  his  name  as  plaintiff;  and  that  no  judicial  rec- 
ord can  be  made  which  will  estop  those  claiming  under 
him  from  showing  that  he  died  before  the  action  was 
begun;  and  that  a  judgment  for  or  against  him  must 
necessarily  be  void.'^  Probably  if  the  plaintiff  is  merely 
one  in  whose  name  an  action  is  prosecuted  for  the  benefit 
of  another,  and  the  defendant,  knowing  this,  does  not 
plead  the  fact  of  plaintiff's  death,  but  suffers  judgment, 
he  cannot  avoid  it  afterwards  on  account  of  such  death.' 
On  the  other  hand,  if  an  action  is  begun  by  and  against 
living  parties,  over  whom  the  court  obtains  jurisdiction, 
and  some  of  them  subsequently  die,  it  is  not  thereby  de- 
prived of  its  jurisdiction;  and  while  it  ought  not  to  pro- 
ceed to  judgment  without  making  the  representatives  or 
successors  in  interest  of  the  deceased  party  parties  to  the 
action,  yet  if  it  does  so  proceed  its  action  is  irregular 
merely,  and  its  judgment  is  not  void.* 

C.  R.  R.  Co,  V.  Bosworth,  8  La.  Ann.  270;  Murray  v.  Weigle,   118  Pa.   St. 

80;  Norton  v.  Jamison,  23  La.   Ann.  159. 

102;  McCloskey  v.  Wingfield,  29  La.  ^  Bollinger  v.  Chouteau,  20  Mo.  89; 

Ann.  141;  Edwards  v.  Whited,  29  La.  Williams  v.  Hudson,  93  Mo.  524;  Cros- 

Ann.  647;  Carter  v.  Carriger's  Adm'r,  ley  v.  Button,  98  Mo.   196;  Loring  v. 

3  Yerg.  411;  24  Am.  Dec.  585;  Ewald  Folger,  7  Gray,  505;  Graves  v.  Ewart, 

V.  Corbett,  32  Cal.  493;  iSIcCreery   v.  99  Mo.  1. 

Everding,  44  Cal.  286;  but  these  Cali-  ^  Powell  v.  Washington,  15  Ala.  803. 

fornia  cases  are  overruled:  Phelan  v.  *  Knott  v.  Taylor,  99  N.  C.  511;  6 

Tyler,  64  Cal.  80.     Judgment  against  Am.  St.  Rep.  547;  Jennings  2;.  Simpson, 

an  extinct  corporation  is  void:  Sturges  12  Neb.  558;  Evans  v.  Spurgin,  6Gratt. 

V.  Vanderbilt,  73  N.  Y.  384;  Clay  v.  107;  52  Am.  Dec.  105;  Phelan  v.  Tyler, 

Buchanan,  63  Iowa,  188.  64  Cal.  80;  Wallace  v.  Center,  67  Cal. 

1  Carr  v.  Townsend,  63  Pa.  St.  202;  133;  Harrison  v.  McMurray,  71  Tex. 

Taylor  v.  Snow,  47  Tex.  462;  26  Am.  122;  Gilman  v.  Donovan,  53  Iowa,  362; 

Rep.  311j  Warder  v.  Tainter,  4  Watts,  Fleming  v.  Seligson,  57  Tex.  524;  Gid- 


"277     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  154 

§  154.  Judgments  Generally  Bind  None  but  the  Parties 
thereto.  —  "Res  inter  alios  acta  alteri  nocere  non  debet." 
"  A  transaction  between  two  parties  ought  not  to  operate 
to  the  disadvantage  of  a  third."  ^  The  application  of  tliis 
maxim  to  the  law  of  judgments  requires  that  no  person 
shall  be  affected  by  any  judicial  investigation  to  which  he 
was  not  a  party,  unless  his  relation  to  some  of  the  parties 
was  such  as  to  make  him  responsible  for  the  final  result 
of  the  litigation.  It  is  a  general  rule  that  an  adjudication 
takes  effect  only  between  the  parties  to  the  judgment,  and 
that  it  gives  no  rights  to  or  against  third  parties.'^  Though 
the  above  maxim  is  more  generally  quoted  than  the 
maxim,  "  Res  inter  alios  acta,  aliis  nee  prodest,  nee  nocet"  — 
*'  A  transaction  between  other  parties  neither  benefits  nor 
injures  those  not  interested," — yet  this  latter  maxim  is 
far  more  applicable  to  judgments,  and  to  every  kind  of 
estoppel,  than  the  former,  because  it  expresses  the  truth 
that  no  person  can  bind  another  by  any  adjudication,  who 
was  not  himself  exposed  to  the  peril  of  being  bound  in  a 
like  manner  had  the  judgment  resulted  the  other  way. 
Whether  a  judgment  is  relied  upon  as  an  estoppel,  an 
adjudication  of  the  validity  or  invalidity  of  a  claim  or 
writing,  the  foreclosure  of  a  lien,  or  as  a  muniment  of 
title,  it  is  inadmissible,^  except  as  against  persons  who 

diners  V.  Steele,  28  Tex.  733;  91  Am.  535;  Doe  v.  Dennison,  8  U.  C.  Q.  B. 

Dec!  336;  King  v.  Burdett,  28  W.  Va.  610;  Clubine  v.  McMullen,   11  U.  C. 

601;    57    Am.    Rep.    687;    Levasey  w.  Q.  B.  250;  Macky  w.  Coates,  70  Pa.  St. 

Antram,  24  Ohio  St.  96;  Yaple  u.  Titus,  350;    Samuel  v.    Agnew,   80   111.   553; 

31    Pa.    St.    195;    80   Am.    Dec.    604;  Pace  v.  Coolidge,   121    Mass.  393;   23 

Mitchell  V.  Schoonover,   16  Or.  211;  8  Am.   Rep.   279;  Hill  v.  Stevenson,   63 

Am.   St.   Rep.   282;  Claflin  v.  Dunne,  Me.   364;    18    Am.     Rep.     231;    John 

129    111.    24;    16    Am.    St.    Rep.    263;  r.Northcutt,  49  Tex.   444;    Bradley  v. 

Spalding    v.    Wathen,    7    Bush,    659;  Rodelsperger,   17  S.  C.   9;   Harvey  v. 

Coleman  v.    McAnulty,    16  Mo.    173;  State,  94  Ind.  159;  Schuster  v.  Rader, 

57  Am.   Dec.  229;  Camden  v.  Robert-  13  Col.  330;  Kramer  v.  Matthews,  68 

son,   2  Scam.  508;  Stoetzell  v.  Fuller-  Ind.  172;  McCoy  v.  McCoy,  29  \V.  Va, 

ton,  44  111.  108;  Case  v.  Ribelin,  1  J.  J.  794. 

Marsh.  30;  Hayes  v.   Shaw,  20  Minn.         "  Gooclnow  v.  Plumbe,  64  Iowa,  672; 

405;  Reid  v.  Holmes,  127  Mass.  326.  Townsend's    Succession,   36  La.    Ann. 

1  Broom's  Legal  Maxims,  858.  447;    Bethlehem    v.     Watertown,    51 

*  Pothier  on  Obligations,  pt.  4,  c.  3,  Conn.  490;  McUon;dd  v.   Matney,   82 

sec.  3,  art.  5;  Society  etc.  v.  Hartland,  Mo.  358;  Scates  v.  King,  110  111.  456; 

2  Paine,  536;  Chase  v.  Swain,   9  Cal.  Montgomery  Co.  v.  Severson,  64  Iowa, 

136;  Peters  v.  Spitzfaden,  24  La.  Ann.  326;    Montgomery    v.   Road,   34    Kan. 

lllj  Mcintosh  V.  Jarvis,  8  U.  C.  Q.  B.  122;    Pratt  v.   Jones,    64    Tox.    694; 


§  154      OF   THE    PEESONS    AFFECTED    BY   JUDGMENT.  278 

were  parties  to  the  suit,  or  in  privity  with  such  parties,  or 
in  such  a  position  that  they  were  the  real  parties  in  inter- 
est in  a  litigation  conducted  for  their  benefit  in  the  name 
of  another  under  such  circumstances  as  to  make  them 
answerable  for  the  result  of  the  litigation,  by  virtue  of 
principles  to  be  hereinafter  stated.  Thus  a  judgment 
against  a  husband,  in  a  suit  to  which  his  wife  is  not  a 
party,  to  settle  and  establish  the  boundary  lines  of  -lands 
which  in  fact  belong  to  her,  cannot  affect  her,  though 
the  judgment  purports  to  be  against  both.*  A  mortgagee 
of  a  husband  is  not  prejudiced  by  a  judgment  in  an  action 
brought  against  the  husband  by  his  wife  subsequent  to 
the  execution  of  the  mortgage  to  obtain  a  decree  adjudg- 
ing the  husband  to  hold  the  lands  in  trust  for  the  wife.^ 
The  foreclosure  of  a  mechanic's  lien  against  a  husband 
cannot  divest  the  separate  estate  of  his  wife.^  An  action 
to  determine  the  ownership  of  a  promissory  note  is  in- 
operative as  against  a  claimant  thereof  not  a  party  to  such 
action.*  Creditors  of  a  husband  are  not  bound  by  the 
result  of  a  litigation  between  him  and  his  wife  to  which 
they  were  not  parties.®  A  foreclosure  and  sale  do  not 
affect  the  right  of  pre-existing  judgment  creditors  not 
parties  thereto.^  A  decree  establishing  a  lien  on  a  rail- 
road is  not  binding  on  the  bond-holders  when  neither 
they  nor  their  trustees  were  parties  to  the  suit.^  One  not 
a  party  to  an  action  is  not  bound  by  a  judgment  entered 
therein,  though  he  attempted  to  enjoin  its  prosecution,* 
or  offered  to  become  a  party,  but  was  denied  that  privi- 

Strauss  v.  Ayres,  87   Mo.   348;    Hel-         '  Durst   v.    Amyx,   13   S.  W.    Rep. 

phrey  v.  Redick,  21  Neb.  80;  Empire  1087  (Ky.). 

V.  Darlington,  101  U.  S.  87;  Hyatt  v.         ^  Boutwell  v.  Steiner,  84  Ala.  307;  5 

McBurney,  18  S.  C.  199;  Hale  v.  Fiuch,  Am.  St.  Rep.  375. 

104  U.  S.  261;  Flanders  v.  Seeley,  105         ^  Franklin  Sav.  Bank  v.  Taylor,  131 

U.  S.  718;  Glaze  v.  Watson,  55  Tex.  III.  376. 

563;  Melhop  v.  Seaton,  77  Iowa,  153;         *  Proctor  v.  Cole,  120  Ind.  102. 

Chase  v.  Kaynor,  78  Iowa,  449;  Lips-         *  Old  Folks'  Society  v.  Millard,  86 

comb    V.    Postell,    38    Miss.    476;    77  Tenn.  657. 

Am.    Dec.  651;  Cameron  v.  Cameron,         *  Whitney  v.  Huntington,  37  Minn. 

15  Wis.   1;  82  Am.  Dec.  652;   Brush  197. 

V.  Fowler,  36  lU.  53;  85   Am.    Dec.         '  Hassall  v.  Wilcox,  130  U.  S.  493. 

382.  8  Gage  v.  McGregor,  61  N.  H.  47. 


279     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  154 

lege.^  The  fact  that  a  person  was  a  party  to  an  action  in 
its  earlier  stages  does  not  bind  him  by  the  judgment,  un- 
less he  Avas  also  a  party  when  it  was  rendered.  If  he,  by 
permission  of  the  court,  withdrew  from  the  action,  or  dis- 
missed it  either  by  consent  of  the  court,  or  without  such 
consent  when  he  had  a  right  to  act  in  its  absence,  then 
the  power  of  the  court  over  him  terminates,  and  a  judg- 
ment subsequently  entered  cannot  affect  his  interests.^ 
If  in  a  proceeding  supplementary  to  execution  a  bank, 
through  its  officers,  is  summoned  before  a  referee  and  ex- 
amined, and  thereupon  an  order  of  court  is  made  requir- 
ing the  bank  to  pay  to  the  judgment  creditor  moneys 
deposited  with  it  in  the  name  of  the  judgment  debtor's 
wife,  and  payment  is  made  accordingly,  such  judgment 
and  payment  cannot  affect  the  wife's  right  to  recover  her 
deposit  from  the  bank,  though  she  was  also  called  before 
the  referee  and  examined  as  a  witness  in  the  supplemental 
proceedings.^ 

The  persons  who  are  directly  parties  to  a  judgment 
can  generally  be  ascertained  by  an  inspection  of  the  rec- 
ord; but  this  is  not  always  the  case.  It  may  happen  that 
the  name  of  some  of  the  parties  is  incorrectly  stated. 
The  weight  of  authority  is,  that  if  the  writ  is  served  on 
the  party,  by  a  wrong  name,  intended  to  be  sued,  and  he 
fails  to  appear  and  plead  the  misnomer  in  abatement, 
and  suffers  judgment  to  be  obtained,  he  is  concluded,  and 
in  all  future  litigation  may  be  connected  with  the  suit  or 
judgment  by  proper  averments;  and  when  such  aver- 
ments are    made    and  proved,  the  party  intended  to  be 

'  Coleman  V.  Hunt,  77  Wis.  263.  1218;   Guinard  v.   Heysinger,    15   111. 

2  Owens  V.   Alexander,   78  N.  C.   1;  288;    Walsh    v.   Kirkpatrick,   30    Cal. 

Ryan  v.  Heenan,  75  Iowa,  589;  Ochel-  202;  89  Am.  Dec.  85;  Hoffield ;-.  Board 

tree  v.  Hill,  77  Iowa,  721.  of  Education,  33  Kan.  044;  Parry  v. 

^Schrauth  v.   Dry  Dock  S.    B.,  86  Woodson,  33  Mo.  347;  84Am.  Dec.  51; 

N.  Y.  390.  Fitzgerald  v.  Salentine,   10  Met.  43G; 

*  National  Bank  w,  Jaggers,  31  Md.  Waldrop    v.    Leonard,    22    S.    C.    18; 

38;    100    Am.   Dec.    53;    Ins.    Co.    v.  Bloomfield   R.   R.  Co.   v.  Burress,  82 

French,   18  How.  409;  Smith  v.  Bow-  Ind.  83;  Peterson  v.  Little,  74  Iowa, 

ker,   1    Mass.    76;    Oakley  u  Giles,  3  223;  Robertson  i;.  Winchester,  85  Tenn, 

East,  168;    Smith  v.  Patten,  6  Tannt,  171. 
115;  Crawford?;.  Satchwell,  2  Strange, 


§  154       OF    THE    PERSONS   AFFECTED    BY    JUDGMENT.  280 

named  in  the  judgment  is  affected  as  though  he  were 
proj)erly  named  therein.'  So  if  persons  are  sued  and 
judgment  is  entered  against  them  by  tlie  name  of  "Childs, 
Gould,  &  Co.,"  it  cannot  be  treated  as  void  on  the  ground 
that  the  name  used  was  not  one  known  to  the  law.^  In 
an  action  to  which  there  were  four  defendants,  the  names 
of  but  three  appeared  in  the  margin  of  the  entry  upon 
the  record,  which  recited  the  verdict  of  the  jury  and  the 
judgment  of  the  court.  This  was  held  to  be  a  valid  judg- 
ment against  all  who  were  properly  and  technically  parties 
defendant  in  the  suit,  on  the  ground  that  this  entry  was 
to  be  construed  by  referring  to  the  process,  pleadings, 
and  proceedings  in  the  action.^  The  identity  of  names 
in  the  record  of  a  former  suit  with  those  in  a  present  suit 
prima  facie  establishes  identity  of  parties;  but  if  the  rec- 
ord fails  to  demonstrate  the  identity,  it  may  be  shown  by 
evidence  aliunde}  An  action  ma}''  be  commenced  and 
process  issued  and  served  against  a  defendant  by  a  ficti- 
tious name,  when  his  name  is  unknown  to  plaintiff. 
"When  the  true  name  of  a  party  so  sued  and  served  be- 
comes known,  the  complaint  should  be  amended  by  in- 
serting it.  The  fact  that  such  amendment  is  not  made 
does  not,  however,  render  void  a  judgment  against  him, 
where  he  has  appeared  in  the  action.'  In  Georgia,  a 
mortgage  may  be  foreclosed  without  making  the  grantee 
of  the  mortgagor  a  party  to  the  suit;^  but  the  judges 
seem  to  be  divided  in  opinion  as  to  whether  such  foreclos- 
ure is,  under  all  circumstances,  conclusive  against  such 
grantee  of  all  the  matters  established  by  the  decree.' 
Very  singularly,  it  has  been  supposed  that  if  a  mortgagor 
conveys  the  mortgaged  property  a  suit  to  foreclose  can  be 
prosecuted  against  him,  without   making  his   grantee  a 

'  Barry  v.  Carothers,  6  Rich.  331.  Tyrrell  v.  Baldwin,  67  Cal.  1 ;  Johns- 

■■'  Bennett  v.  Child,  19  Miss.  362;  88  ton  v.  S.  F.  S.  U.,  75  Cal.  154;  Curtis 

Am.  Dec.  692.  v.  Herrick,  14  Cal.   117;  73  Am.  Dec. 

3  Wilson  V.  Collins,  11  Humph.  189.  632. 

*  Garwood  v.  Garwood,  29  Cal.  514;  ^  Knowles  v.  Lawton,  18  Ga.  476;  58 
Thompson  v.  Manrow,  1  Cal.  428.         •  Am.  Dec.  290. 

*  Campbell  v.  Adams,  50  Cal.  203;  »  Guerin  v.  Danforth,  45  Ga.  493. 


281     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  155 

party,  and  a  judgment  obtained,  under  which  the  latter's 
title  and  equity  of  redemption  can  be  cut  off.^  But  there 
is  no  principle  in  support  of  this  supposition;  and  the 
authorities  are  now  nearly,  if  not  quite,  unanimous  in 
asserting  that  when  the  mortgagor's  grantees  are  not 
parties  the  judgment  cannot  affect  their  title.^  As  against 
strangers  to  the  suit,  a  decree  of  divorce  is  not  evidence 
of  the  marriage  of  the  parties  to  it.^ 

§  155.  General  Expressions.  —  In  all  cases  where  the 
expression  in  the  judgment  is  general,  it  will  be  confined 
to  the  parties  served  with  process.*  Thus  where  there 
are  two  defendants,  one  of  whom  is  served  with  process 
and  pleads,  and  the  judgment  entry  recites  that  the  parties 
came  by  their  attorneys,  it  will  be  intended  that  no  one 
came  but  he  who  had  been  summoned  and  had  pleaded.* 
In  Vermont,  a  record  similar  to  this  was  difierently  con- 
strued.^ In  a  later  case  in  that  state,  the  record  showed 
service  of  process  on  two  out  of  four  defendants.  The 
judgment  recital  was,  "that  defendants  came  by  their  at-' 
torney."  This  entry,  it  was  held,  did  not  show  an  appear- 
ance as  to  more  than  the  two  defendants  served.  As  to 
the  former  case,  it  was  said  to  be  supportable  only  upon 
the  assumption  that  in  an  action  where  there  were  but 
two  defendants  the  use  of  the  plural  term  "parties  "  was 
inconsistent  with  the  theory  that  any  less  than  two  per- 
sons appeared.''  In  Colorado,  a  judgment  against  the  de- 
fendants, one  only  being  served  with  process,  was  treated 
as  being  against  both,  and  was  therefore  reversed.^     If, 

»  Street  t>.  Bell,  16  Iowa,  68;  85  Am.         *  Chester    v.    Miller,    13    Cal.    561; 

Dec.  504.  Malaney  v.  Hughes,  50  N.  J.  L.  546; 

2  Berlack  v.  Halle,  22  Fla.  236;  1  Edwards  v.  Toouier,  14  Smedes  &  M. 
Am.  St.  Rep.  185;  Goodenow  r.  Ewer,  76;  Miller  v.  Ewing,  8  Smedes  &  M. 
16  Cal.  471;  76  Am.  Dec.  540;  Boggs  421.  This  rule  cannot  apply  when 
V.  Hargrave,  16  Cal,  559;  76  Am.  Dec.  each  of  the  defendants  is  named  in 
561;  San  Francisco  v-  Lawton,  18  Cal.  the  judgment:  Ownings  v.  Binford,  80 
465;  79  Am.  Dec.  187;  Childs  v.  Childs,  Ala.  421. 

10   Ohio   St.  .339;   75   Am.  Dec.  512;  °  Puckett  w.  Pope,  3  Ala.  552. 

Terrill  v.  Allison,  21  Wall.  292;  Scates  «  lilood  v.  Crandall,  28  Vt.  396. 

V.  King,  110  111.  456.  '  Hubbard  v.  Dubois,  37  Vt.  94;  86 

3  Gourand    v.    Gourand,     3    Redf.  Am.  Dec.  690. 

262.  8  Langley  v.  Gull,  1  Col.  71. 


§   156       OF    THE    TERSONS   AFFECTED    BY    JUDGMENT.  282 

during  the  pendency  of  an  action,  a  7iolle  prosequi  is  en- 
tered as  to  some  of  tlie  defendants,  a  general  judgment 
subsequently  taken  against  the  '^defendants"  will  be  con- 
strued to  include  only  those  as  to  whom  no  nolle  prosequi 
was  entered/ 

§  156.  In  Same  Capacity.  —  Every  person  may,  at  dif- 
ferent times,  or  at  the  same  time,  occupy  different  rela- 
tions, act  in  different  capacities,  and  represent  separate 
and  perhaps  antagonistic  interests.  It  is  a  rule  of  both 
the  civiP  and  the  common  law^  that  a  party  acting  in  one 
right  can  neither  be  benefited  nor  injured  by  a  judgment 
for  or  against  him,  when  acting  in  some  other  right.  As 
familiar  illustrations  of  this  rule,  it  is  said  that  a  judg- 
ment against  one  as  tutor ^  will  not  prevent  his  recovering 
the  same  demand  in  his  own  right;  that  "a  woman  is  not 
estopped  after  coverture  by  an  admission  on  record  of 
herself  and  her  husband  during  coverture;  and  an  heir 
claiming  as  heir  of  his  mother  is  not  estopped  by  an  es- 
toppel upon  him  as  the  heir  of  his  father."^  A  plaintiff 
suing  as  administrator  of  his  wife  is  not  affected  by  a 
judgment  against  himself  in  her  lifetime,  in  an  action 
to  which  she  was  not  a  party.^  A  decree  against  one  as 
administrator  on  a  bill  to  compel  the  delivery  of  slaves 
claimed  as  a  gift  from  the  intestate  will  not  conclude  his 
rights  as  a  creditor  on  a  bill  by  him  against  the  former 
plaintiffs  to  set  aside  the  gift  conveyance  for  fraud.'  Nor 
is  a  decree  against  the  validity  of  an  entry,  in  a  suit 
between  M.  and  A.,  any  bar  to  a  subsequent  action  of  R,, 
by  A.,  his  guardian  and  next  friend,  against  M.,  involving 
the  validity  of  the  same  entry.®     The  foreclosure  of  a 

'  Boyd  V.  Bayaham,  5  Humph.  386;  Rathbone  v.  Hooney,  58   N.  Y.  463; 

42  Am.  Dec.  438.  McBurnie  v.  Seaton,  111  Ind.  56;  Mc- 

2  Pothier  on  Obligations,  pt.  4,  c.  3,  Nutt  v.  Frogdon,  29  W.  Va.  469. 

sec.  3,  art.  4.  *  Pothier  on  Obligations,  pt.  4,  c.  3, 

^  2  Smith's  Lead.  Cas.  589;  Brooking  sec.  3,  art.  4. 

V.  Dearmond,   27  Ga.  58;   Robinson's  *  2  Phillipps  on  Evidence,  11,  12. 

Case,  5  Rep.  32  b;  Benz  v.  Hines,  3  ^  Blakey  v.  Newby,  6  Munf.  64. 

Kan.  397;  89  Am.  Dec.  594;  Com.  Dig.,  ^  Jones  v.  Blake,  2  Hill,  629. 

tit.  Estoppel,  C;  Lander  v.  Arno,  65  ^  Marshall  v.  Rough,  2  Bibb,  628. 
Me.  26;  Erwin  v.  Garner,  108  Ind.  488; 


283     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  156 

mortgage  by  an  action  to  which  a  widow  is  made  a  party 
in  her  character  of  executrix  and  devisee  does  not  affect 
her  claim  for  dower  in  the  mortgaged  premises;'  neither 
does  a  foreclosure  against  herself  and  other  heirs  of  the 
mortgagee  (she  not  having  joined  in  the  mortgage),  no 
reference  being  made  in  the  petition  to  her  right  to 
dower.'^  In  Missouri,  a  widow  is  not  estopped  from 
claiming  lands  in  her  own  right  by  the  fact  that  dower 
had  been  allotted  to  her  in  the  same  land,^  nor  by  the  fact 
that  she  was  made  a  party  to  a  suit  for  partition  of  the 
lands  and  for  the  assignment  of  her  dower  therein,  which 
suit  was  prosecuted  to  judgment,  and  a  decree  entered 
therein  assigning  her  dower  and  ordering  the  land  to  be 
sold.*  These  decisions,  however,  seem  to  be  based  upon 
the  idea  that  a  widow  can  always  be  relieved  from  a 
judgment  made  against  her  when  she  was  ignorant  of  her 
true  rights,  rather  than  upon  the  theory  that  her  claims 
in  the  different  proceedings  were  by  different  rights  and 
in  different  capacities.  A  suit  by  the  president  of  the 
orphans'  court,  for  the  use  of  the  assignee  of  the  husband, 
for  the  amount  of  the  share  of  the  wife  is  no  bar  to  a  re- 
covery in  the  name  of  the  same  officer  for  the  use  of  the 
wife  and  her  husband  as  her  trustee.^  A  judgment 
against  plaintiff,  suing  as  the  assignor  of  a  non-negotiable 
promissory  note,  without  the  privity  of  the  assignee,  after 
the  assignment  was  made,  and  notice  thereof  given  the 
debtor,  is  no  bar  to  an  action  by  the  same  assignor,  for 
the  use  of  his  assignee,  especially  if  there  is  reason  to  be- 
lieve that  the  former  action  was  prosecuted  in  fraud  of 
the  rights  of  the  assignee.*  The  following  are  instances 
of  judgments  against  a  party  in  one  capacity  not  binding 
on  him  in  another:  A  father  suing  as  administrator  of  his 
minor  son  to  recover  for  injuries  sustained  by  such  son 

1  Lewis    w.    Smith,    11    Barb.     152;         »  Thompson  w.  Renoe,  12  Mo.  157. 
Frost  V.  Koon,  30  N.  Y,  428.  *  Crenshaw  v.  Creek,  52  Mo.  101. 

2  I^Ioomey  v.  Maas,  22  Iowa,  380;  92        "  Eshelmaa  v.  Shuman,   13  Pa.  St. 
Am.  Dec.  395.     See  Benjamin  v.   El-  5G1. 

miraR.  R.  Co.,  49  Barb.  441,  which         «  x)a,waon  w.  Coles,  16  Johns.  51. 
contains  expressions  coTitra. 


§  156   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     284 

is  not  affected  by  a  judgment  previously  recovered  by  the 
father  for  his  damages  resulting  from  the  same  injuries;* 
a  judgment  against  one  as  an  administrator  in  one  state 
cannot  affect  him  in  another;^  judgment  against  a  minor 
daughter  in  an  action  brought  by  her  father  as  her  next 
friend,  for  her  seduction,  is  no  bar  to  subsequent  action  by 
the  father  in  his  own  right  to  recover  for  the  same  seduc- 
tion;' sheriff  suing  by  virtue  of  a  levy  under  a  writ  in 
favor  of  A  is  not  bound  by  a  judgment  recovered  when  he 
was  suing  under  a  levy  in  favor  of  B;'*  an  action  against 
parties  as  heirs  does  not  affect  them  as  tenants;^  nor  can 
an  action  against  one  personally  affect  the  interest  of  a 
minor  of  whom  he  was  guardian.® 

Sometimes  one  of  the  parties  is  before  the  court  in  two 
or  more  capacities,  and  the  judgment  binds  him  in  both. 
Thus  if  one  is  brought  before  the  court  as  the  trustee  of 
certain  bond-holders,  and,  as  such,  a  decree  is  entered 
against  him,  he  cannot  relitigate  the  same  matter  on 
the  ground  that  he  was  himself  a  holder  of  some  of  the 
bonds.  If  he  was  such  holder,  he  is  bound  by  the  for- 
mer decree,  because  as  trustee  in  the  former  suit  "  he  was 
representing  himself." '  Where  a  party  against  whom  a 
judgment  is  offered  in  evidence  was  plaintiff  in  the  former 
action,  and  there  set  forth  the  right  in  which  he  sued, 
there  can  be  no  difficulty  in  determining  w^iether  or  not 
he  is  barred  by  such  judgment,  as  there  can  be  no  doubt, 
if  the  cause  of  action  by  which  he  seeks  to  recover  in  the 
second  suit  is  different  from  that  which  he  alleged  in  the 
first,  that  the  former  judgment  is  inadmissible  in  the  pres- 
ent action.  Where  a  party  has  rights  or  claims  property 
in  two  or  more  capacities,  and  is  made  a  defendant  in 
some  action  or  proceeding,  the  pleading  against  him 
should  show  that  he  is  made  defendant  in  each  capacity,* 
and  failing  to  do  so,  the  judgment  will  often  bind  him  in 

J  Bradley  «.  Andrews,  51  Vt.  525.  «  Salter  ». 'Salter,    80  Ga.   178;   12 

«  Coates  V.  Mackey,  56  Md.  416.  Am.  St.  Rep.  249. 

*  Bartlett  v.  Kochel,  88  Ind.  425;  "  Corcoron  v.  Chesapeake  Canal  Co., 
McBurnie  v.  Seaton,  111  Ind.  56.  94  U.  S.  741. 

*  Stoops  V.  Woods,  45  Cal.  4.S9.  ^  INIauigault  v.  Holmes,  1  Bail.  Eq. 
'  Barrett  v.  Choen,  119  Ind.  56.             283. 


285     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  156 

one  capacity  only,  though  he  might  have  been  bound  in 
both  by  appropriate  pleadings.    Thus  one  who  is  a  party, 
in  his  capacity  as  heir,  to  a  proceeding  by  an  administra- 
tor for  the  sale  of  lands  is  not  precluded  from  afterwards 
enforcing  a  lien  held  by  him  as  vendor.*     If  one  is  made 
a  defendant  in  an  official  capacity,  the  judgment  will  not 
bind  him  personally,  and  if  made  a  defendant  personally, 
it  will  not  bind  him  officially.     Hence  a  judgment  fore- 
closing a  mortgage  in  an  action  against  an  executrix  can- 
not prevent  her  from  showing  that  she  has  a  homestead 
in  the  property  not  subject  to  the  mortgage,  though  in  the 
former  action  she  pleaded  the  homestead  in  her  capacity 
of  executrix;^  and  a  judgment  in  an  action  against  one,  in 
which  the  capacity  in  which  he  is  sued  is  not  shown,  does 
not  affect  title  held  by  him  as  assignee  in  insolvency.*    If 
a  woman  is  a  party  to  an  attachment  proceeding,  and  by  a 
general  bill   all  the   attachment   suits   are  brought   into 
chancery  and  a  particular  lot  directed  to  be  sold,  and  no 
issue  respecting  the  title  to  it  is  made  up,  she  is  not  es- 
topped from  showing  that  the  lot  belonged  to  her,  and  not 
to  the  defendant  in   attachment.*     If  a  married  woman 
executes  a  mortgage  in  which  her  husband  does  not  join, 
and  he  is  made  a  party  in  a  suit  to  foreclose  it,  in  which 
judgment  of  foreclosure  is  subsequently  rendered,  it  will 
not  estop  him  from  asserting  that  the  property  mortgaged 
did  not  belong  to  his  wife  as  her  separate  estate,  but,  on 
the  contrary,  was  community  property.^     But  where  an 
executor,  being  interested  also  as  a  creditor  and  surety  of 
his  testator,  filed  a  bill   in  equity,  praying  that  certain 
lands  claimed  under  a  deed  of  gift  from  the  testator  be 
subjected  to  the  payment  of  his  debts,  and  also  praying 
for  directions  as  to  the  execution  of  his  trust,  it  was  held 
that  the  decree  disposing  of  such  bill  bound  the  executor 
in  all  the  capacities  in  which  he  was  interested.* 

J  Lord  V  Wilcox,  99  Ind.  491.  ■•  Lorance  v.  Piatt,  67  Miss.  183, 

2  Stockton  B.&L.Ass'n  v.  Clialmera,  *  McComb     v.     Spangler,    71     Cal. 
75  Cal.  832;  7  Am.  St.  Rep.  173.  418. 

3  Landou  v.  Towushend,   112  N.  Y.  *  Jenkins  v.  Nolan,  79  Ga,  295. 
93;  8  Am.  St.  Kep.  712. 


§  157       OP   THE    PERSONS    AFFECTED    BY    JUDGMENT.  286 

§  157.  Numerous  Parties.  —  The  general  rule  that  no 
person  can  be  treated  as  a  party  to  a  judgment  who  was 
not  also  a  party  to  the  action  is  subject  to  some  excep- 
tions. If  a  suit  is  brought  by  A,  for  himself  and  others 
not  named,  alleging  that  they  are  a  large  number  of  per- 
sons interested  under  a  deed  with  himself  as  purchasers 
for  a  valuable  consideration,  and  that  they  are  so  numer- 
ous that  it  is  impracticable  to  bring  them  all  before  the 
court,  the  decree  subsequently  rendered  in  the  suit  can 
be  used  for  the  benefit  of  any  of  the  unnamed  parties.^ 
An  insolvent  partnership  made  an  assignment  of  its  effects 
for  the  benefit  of  creditors.  One  of  these  creditors  brought 
an  action  in  his  own  behalf  and  that  of  others  who  should 
come  in  and  claim  the  benefit  thereof,  against  the  as- 
signees for  an  accounting  and  distribution  of  the  funds 
in  their  hands.  In  this  action  a  referee  was  appointed, 
with  power  to  take  and  state  the  account  of  the  assignees, 
and  to  report  the  amount  due  such  creditors  as  should 
come  in  under  the  order  and  seek  the  benefit  of  the  ac- 
tion. Notice  to  the  creditors  was  given  by  a  publication 
made  by  authority  of  the  court,  and  requesting  them  to 
come  in  and  exhibit  their  demands.  In  pursuance  of 
such  notice,  creditors  came  in  and  exhibited  their  de- 
mands, an  account  was  taken  with  the  assignees,  the  ref- 
eree's report  was  confirmed  by  the  court,  and  the  funds 
in  the  hands  of  the  assignees  were  distributed  accordingly. 
These  proceedings  were  said  to  "have  been  sanctioned  as 
indispensable  to  the  distribution  of  trust  funds  and  the 
settlement  of  trust  estates  in  courts  of  equity";  and  the 
decree  of  distribution  was  held  to  be  binding  upon  all 
the  creditors  of  the  assignors,  whether  they  knew  of  the 
proceedings  or  not,  "just  as  if  they  had  been  parties  to  it, 
and  their  claim  had  been  denied  and  defeated,  unless 
they  can  assail  or  attack  it  for  fraud,  and  claim  its  abso- 
lute nullity  as  to  them  on  that  account."^     A  trust  com- 

1  Hurlbutt  V.  Butenop,  27  Cal.  50;  »  Kerr?».  Blodgett,  48  N.  Y.  66.  See 
Carpenter  v.  Canal  Co.,  35  Ohio  St.  also  Thompsou  v.  Brown,  4  Johns.  Ch. 
307.  619;  Wilder  v.  Keeler,  3  Paige,   164; 


287  OF   THE    PERSONS   AFFECTED    BY   JUDGMENT.       §  157 

pany  having  been  proceeded  against  as  an  insolvent 
corporation,  at  the  instance  of  a  public  oflficer,  a  receiver 
was  appointed,  who  was  ordered  to  take  possession  of  the 
property  of  the  company  and  administer  it  according  to 
the  law,  subject  to  the  further  order  and  direction  of  the 
court.  He  took  possession  of  the  property  and  began  to 
administer  it,  and  for  the  purpose  of  obtaining  the  direc- 
tion of  the  court  in  respect  to  such  administration,  he 
presented  a  petition  alleging  that  all  the  creditors  of  the 
company  had  been  ordered  to  present  and  prove  their 
claims;  that  the  larger  number  of  them  had  complied  with 
the  order;  that  he  had  reason  to  believe  that  the  rest  of 
them  would  do  so;  that  some  of  the  creditors  claimed 
preference,  while  others  did  not,  and  insisted  that  no 
preference  be  allowed;  and  he  prayed  for  an  order  pre- 
scribing in  what  manner  payment  and  distribution  should 
be  made  of  the  funds  realized  by  him  as  such  receiver. 
Notice  of  the  hearing  of  his  petition  was  given  to  all  per- 
sons interested,  by  the  publication  of  the  petition  and  the 
order  of  notice  for  three  successive  weeks  in  a  newspaper, 
and  service  of  such  petition  was  also  accepted  by  the 
chairman  of  the  depositors'  committee.  At  the  hearing, 
counsel  appeared  and  represented  the  general  creditors, 
and  other  counsel  for  the  creditors  who  claimed  a  prefer- 
ence, and  a  decree  M^as  entered  that  all  the  depositors  who 
had  proved  or  should  thereafter  prove  their  claims  should 
stand  upon  terms  of  perfect  equality.  Some  of  the  de- 
positors who  claimed  a  preference  appealed  from  this 
decree,  but  the  judgment  was  affirmed  by  the  appellate 
court.  Afterwards,  other  depositors  appeared  and  claimed 
a  preference  notwithstanding  the  former  decree,  and  in- 
sisted that  they  were  not  bound  by  it,  because  not  parties 
thereto  and  not  represented  in  any  of  the  proceedings  at 
or  preceding  the  entry  of  such  decree.     The  court,  in 

23  Am.  Dec.  781;  Egberts  v.  Wood,  3  L'Amourcux,  11  Barb.  Slfi;  Dewey  ». 
Paige,  518;  24  Am.  Dec.  230;  Brooks  St.  Albaus  T.  Co.,  CO  Vt.  1;  (5  Am,  St. 
V.  Gibbous,  4  Paige,  374;  McKenzie  v.     Rep.  84. 


§  157   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.    283 

affirming  the  binding  obligation  of  the  decree  as  against 
all  the  depositors,  whether  represented  or  not,  said:  "Al- 
though the  general  rule  in  equity  is,  that  all  persons  hav- 
ing an  interest  in  the  subject-matter  in  litigation  should 
be  before  the  court,  to  the  end  that  complete  justice  may 
be  done  and  future  litigation  prevented,  yet  there  is   of 
necessity  an  exception  to  this  rule  when  a  failure  of  jus- 
tice would  ensue  from  its  enforcement.     It  is  said  that 
the  want  of  parties  does  not  affect  the  jurisdiction,  but 
addresses  itself  to  the  policy  of  the  court;  that  the  rule 
was  made  by  the  court  for  the  promotion  of  justice,  and 
may  be  modified  by  it  for  the  same  purpose,  and  is  always 
more  or  less  a  matter  of  discretion,  depending  on  conve- 
nience: Stimson  v.  Lewis,  36  Vt.  91.     Cases  in  w^hich  the 
parties  in  interest  are  so  numerous  as  to  make  it  imprac- 
ticable or  greatly  inconvenient   and  expensive  to  bring 
them  all  before  the  court  form  an  exception  to  the  rule. 
And  this   exception   applies  to  defendants  as  well  as  to 
plaintiffs.     Take  the  case   of  a  voluntary  association   of 
many  persons.    It  is  sufficient  in  a  suit  against  them  that 
such  a  number  be  made  defendants  as  will  fairly  repre- 
sent the  interests  of  all  standing  in  like  character  and 
responsibility.'"     While  it  is  a  general  rule  that  cestuis 
que  trust  must  be  made  parties,  to  bar  their  equitable  in- 
terests, it  is  well  settled  that  they  need  not  be,  if  very 
numerous.^     Where  real  estate  was  vested  in  trustees,  for 
the  use  of  two  hundred  and  fifty  subscribers,  it  was  held 
to  be  unnecessary  to  make  others  than  the  trustees  par- 
ties to  the  foreclosure  of  a  mortgage.'     A  similar  decision 
was  made,  where  the  trustee  for  the  holder  of  three  hun- 
dred and  twenty  railroad  bonds  w^as  sued  for  the  purpose 
of  foreclosing  a  prior  mortgage.*     But  it  seems  to  be  cer- 
tain that  the  courts  dislike  to  proceed  in  the  absence  of 

1  Dewey  v.   St.   Albans   T,   Co.,   60  *  Vaa  Vechten   r.  Terry,   2  Johns. 
Vt.  1;  6  Am.  St.  Rep.  84.  Ch.  197. 

2  Shawv.  R.  R.  Co.,  5  Gray,  170;  W^il-  *  Board  of  S.  v.  M.  P.  R.  R.  Co.,  24 
link  V.  Canal  Co.,  4  N.  J.  Eq.  377;  N.  J.  Wis.  127. 

Frauklinite  Co.  v.  Ames,  1  Beas.  507. 


"289     OP  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  158 

any  of  the  parties  in  interest,  and  that  they  will  only  fail 
to  order  all  parties  to  be  brought  before  them  in  extreme 
cases,  where  the  difficulty  of  proceeding  would  otherwise 
be  very  great.^ 

§  158.  Adversary  Parties.  — Parties  to  a  judgment  are 
not  bound  by  it,  in  a  subsequent  controversy  between  each 
other,  unless  they  were  adversary  parties  in  the  original 
action.^  If  A  recovers  judgment  against  B  and  C  upon  a 
contract,  which  judgment  is  paid  b}^  B,  the  liability  of  C 
to  B,  in  a  subsequent  action  for  contribution,  is  still  an 
open  question,  because  as  to  it  no  issue  was  made  or  tried 
in  the  former  suit.^  As  between  the  several  defendants 
therein,  a  joint  judgment  establishes  nothing  but  their 
joint  liability  to  the  plaintiff.  Which  of  the  defendants 
should  pay  the  entire  debt,  or  what  proportion  each  should 
pay,  in  case  each  is  partly  liable,  is  still  unadjudicated;* 
but  a  judgment  against  two  joint  debtors  prevents  either, 
in  a  suit  with  the  other,  from  denying  the  existence  and 
obligation  of  the  debt,  though  he  may  still  prove,  by  any 
competent  evidence  in  his  power,  that  the  whole  burden 
of  the  obligation  should  be  borne  by  the  other.®  One  of 
several  plaintiffs  is  not  prevented,  by  a  judgment,  from 
showing,  when  called  upon  by  his  co-plaintiffs  to  contrib- 
ute his  proportion  of  the  expenses  incurred,  that  he  had 
no  knowledge  of  the  institution  of  the  suit.*  It  is  the 
constant  practice  of  courts  of  equity  to  decree  between 
co-defendants  upon  proper  proofs,  and  under  pleadings 
between  plaintiffs  and  defendants,  which  bring  the  re- 
spective claims  and  rights  of  such  co-defendants  between 
themselves  under  judicial  cognizance.  But  the  language 
of  a  decree  in  chancery  must  be  construed  in  reference  to 

1  Doorly  V.  Higgina,  9  Hare,  32.  «  Biiffington  v.  Cook,  35  Ala.  312;  73 

2  McMahan  v.  Geiger,  73  Mo.   145;     Am.   Dec.  491;  McCrory  v.  Parks,  18 
39  Am.  Rep.  489;  Dent  v.  King,  1  Ga.     Ohio  St.  1. 

200;  44  Am.    Dec.  638;   Harvey  v.  Os-  *  Adm'r  of  Cox  v.  Hill,  3  Oliio,  412; 

born,    55    Ind.    535;    Montgomery    v.  Duncan  v.  Holcnmb,  2(j  Ind.  378. 

Road,  34  Kan.  122;  Walters  v.  Wood,  *  Lloyd  v.  Barr,  11  Pa.  St.  41. 

61  Iowa,  290;  Pdce  v.  Cutler,  17  Wis.  *  Wilson  v.  Mower,  6  Maaa.  407. 
351;  84  Am.  Dec.  747. 
JUDQ.  I.  — 19 


§  158   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.    21K) 

the  issue  which  is  put  forward  by  the  prayer  for  relief 
and  other  pleadings,  and  which  these  show  it  was  meant  to 
decide.     Hence  though  the  language  of  the  decree  be  very 
broad  and  emphatic,  — enough  so,  perhaps,  when  taken 
in  the  abstract  merely,  to  include  the  decision  of  ques- 
tions between  co-defendants,— yet  where  the  j^leadings, 
including  the  prayer  for  relief,  are  not  framed  in  such 
a  way  as  to  bring  their  rights  before  the  court,  or  are 
framed  with  a  view  to  litigate  the  rights  of  defendant  and 
plaintiff  between  each  other  only,  such  general  language 
will  be  held  to  apply  between  plaintiff  and  defendant  only,  i 
and  not  between  co-defendants.^     A  decree  on  a  bill  in 
equity,  filed  by  the  executor  of  a  will,  against  the  residuary 
legatees,  to  determine  their  distributive  shares,  fixing  the 
amount  of  the  advancement  to  a  legatee  and  the  amount 
of  his  distributive  share,  is  conclusive  evidence  of  such 
amount  in  a  suit  for  partition  of  real  estate  devised  to  the 
legatees  by  the  same  will.^     In  cases  like  this  it  is  evident 
that  the  several  persons  joined  as  defendants  are  adver- 
sary parties.     The  only  issues  framed  in  the  case  are  in 
respect  to  their  relative  claims  under  the  same  instrument. 
The  plaintiff,  though  nominally  a  party,  is  indifferent  to 
the  result.     As  the  entire  contest  must  be  made  by  de- 
fendants against  each  other,  their  position  is  such  as  to 
make  the  decree  conclusive  upon  them  whenever  the  same 
questions  shall  again  be  involved.    Wherever  the  rules  of 
practice  permit  defendants  to  make  issues  among  them- 
selves, and   to  have   such    issues   determined   and  relief 
granted  thereupon,  they  become  adversary  parties  upon 
interposing  pleadings  setting  forth  their  conflicting  inter- 
ests and  calling  for  the  granting  of  appropriate  relief;  and 
a  judgment   or   decree   determining    such  interests  and 
granting  or  denying    such   relief  is  as  conclusive   upon 

1  Graham  v.  R.  R.  Co.,  3  Wall.  704;  defendants,  not  there  in  issue,  is  to 

Gardner  v.  Raisbeck,  28  N.  J.  Eq.  71.  that    extent  void:    Jones  v.  Vert,  121 

And  a  decree    in    a    foreclosure    suit,  lud.  140;   16  Am.  !St.  Rep.  379. 

purporting  to  settle  the  righta  of  co-  »  Torrey  v.  Pond,  102  Mass.  355. 


291     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  159 

them  as  if  they  had  been  plaintiff  and  defendant  instead 
of  co-defendants/ 

§  159.     Parties  must  be  Mutually  Bound.  —  No  party  is, 
as  a  general  rule,  bound  in  a  subsequent  proceeding  by  a 
judgment,  unless  the  adverse  party  now  seeking  to  secure 
the  benefit  of  the  former  adjudication  would  have  been 
prejudiced  by  it  if  it  had  been  determined  the  other  way.^ 
"  The  operation  of  estoppels  must  be  mutual.     Both  the 
litigants  must  be  alike  concluded,  or  the  proceedings  can- 
not be  set  up  as  conclusive  upon  either."  ^    "  It  is  essential 
to  an  estoppel  that  it  be  mutual,  so  that  the  same  parties 
or  privies  may  both  be  bound  and  take  advantage  of  it."* 
*'  Nobody  can  take  benefit  by  a  verdict,  that  had  not  been 
prejudiced  by  it  had  it  gone  contrary."^     A  verdict  and 
judgment  in  favor  of  a  trespasser  is  not  conclusive  evi- 
dence in  favor  of  a  co-trespasser,  in  an  action  by  the 
same  plaintiff.^     A  judgment  against  the  indorser  is  not 
evidence  for  him  in  an  action  against  the  maker.^     A 
judgment  against  the  tenant,  in  a  writ  of  entry  brought 
by  an  heir,  at  the  expense  of  the  co-heirs,  to  try  title,  can- 
not be  taken  advantage  of  by  another  of  the  heirs,  in  a 
suit  against  the  tenants  for  mesne  profits.^     A  party  to  a 
divorce  suit,  in  which  the  bill  was  dismissed,  cannot  use 
the  decree  of  dismissal,  or  any  of  the  findings  of  the  court 

1  Harmon  v.  Auditor.  123  111.  122;  5  »  1  Greenl.  Ev.,  sec.  524;  Manigaiilt 
Am  St.  Rep.  502;  Devin  w.  Ottumwa,  v.  Deas,  1  Bail.  Eq.  28:^;  Burgess  v. 
53  Iowa  461;  Leavitt  v.  Wolcott,  95  Lane,  3  Greenl.  165;  Griswold  i;.  JUck- 
N  Y  212-  Goldschmidt  v.  County  of  son,  2  Edw.  Ch.  461;  Simpson  v.  Pear- 
Nobles,  37  Minn.  49;  Parkhurst  v.  son,  31  Ind.  1;  99  Am  Dec.  5,7; 
Berdell,  110  N.  Y.  386;  6  Am.  St.  Rep.  Huntington  «•  Jewett  25  Iowa  249; 
3g^  95  Am.  Dec.  788;  Bradford  v.  Bradford, 

^'Redmond  v.  Coffin,  2  Dev.  Eq.  443;  5  Conn.  127;  Edwards  iMNIcCurdy,  13 

Wood  V.  Davis,  7  Crancli,  271;  Simp-  111.  49G;  Hams  r.  Plant  &  Ui.,  21  Ala. 

son  V.  Jones,  2  Sneed,  36;  Bell  v.  W.l-  639;  Wright  r.  Hazen    24  Vt    143. 
son    52  Ark.  173;  Nowack  v.  Knigiit,         *  Petrie  v.  Nuttall,  11  Ex.  569. 
44  Minn    241;  Densmore  w.  Tomer,  14         *  Gilbert  on  Evidence,  28;  cited  m 

N^b.  392;  Lord  V.Locke,  62  N.  H.  566;  Wenman   v.  MacKeuzie,  5   El.   &  B. 

Henry  V.' Woods,  77  Mo.  277;  Cotl.rea  447.  ,„  t>-  ,     Ar^n 

V  Olmsted,   57  Conn.   329;  Geekie  v.         ''  Sprague  v.  Oakes,  19  Pick.  455. 
Kirl>y  C   Co.,  106  U.  S.  379;  Burdick        '  Fenn    v.    Dr.gdale,    31     Mo.    580; 

V  Norwich,  49    Conn.    225;    Shulze's  Brooklyn    v.    Bank    of    Republic,    11 
Appeal     1   Pa.   St.  251;  44  Am.   Dec.  Cent.  L.  J.  3.30. 

12u-  Furgeson  v.  Jouea,  17  Or.  204.  *  Allen  v.  Carter,  8  Pick.  175. 


§  159   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     292 

or  jury,  in  a  controversy  between  himself  and  a  third 
party,  for  the  purpose  of  establishing  any  of  the  facts 
asserted  by  such  decree  or  finding.  Thus  if,  in  an  appli- 
cation by  a  husband  for  divorce,  on  the  ground  of 
adultery,  the  jury  find  the  allegations  of  plaintiff  to  be 
true,  and  also  find  that  he  has  been  guilty  of  a  similar 
offense,  and  his  bill  is  on  that  account  dismissed,  he 
cannot,  on  being  sued  for  necessaries  furnished  his  wife, 
defend  himself  by  the  finding  of  the  jury  in  respect  to  her 
adultery.'  Neither  is  the  dismissal  of  a  bill  of  a  wife  for 
divorce,  on  the  ground  of  extreme  cruelty,  conclusive  evi- 
dence, in  an  action  by  a  third  person  against  the  husband 
for  necessaries,  that  the  wife  left  him  without  sufficient 
justification.^  A  judgment  in  favor  of  one  creditor,  declar- 
ing a  conveyance  void  as  against  creditors,  is  not  evidence 
in  a  suit  by  another  creditor,  for  he  would  not  have  been 
concluded  if  the  first  suit  had  terminated  differently.*  A 
conviction  upon  an  indictment  is  not  usually  admissible 
as  evidence  in  any  civil  action,  because  the  parties  in  the 
civil  suit  are  not  generally  parties  to,  nor  mutually  bound 
by,  the  criminal  prosecution.  But  if  a  bond  is  given  to 
the  state  that  a  party  will  abstain  from  committing  some 
unlawful  act,  a  subsequent  indictment  of  the  principal, 
and  his  conviction  thereunder,  are,  in  a  civil  suit  by  the 
state  on  the  bond,  conclusive  evidence  against  the  princi- 
pal and  prima  facie  evidence  against  the  surety.^ 

Notwithstanding  the  self-evident  justice  and  propriety 
of  the  rule  that  estoppels  must  be  mutual,  and  that  no  man 
shall  bind  another  by  an  adjudication  which  he  is  himself 
at  liberty  to  disregard,  instances  are  not  rare  where  the  rule 
has  been  denied  or  overlooked  by  courts  and  judges  whose 
decisions  are  entitled  to  great  respect.  Lord  Kenyon  ad- 
mitted the  record  of  a  former  action,  in  which  the  defend- 
ants in  the  suit  before  him  were  adversary  parties,  but 

'Needbamv.  Brenner,  12  Jur.,N.S.,  » Winston  v.  Starke,  12  Gratt 
434;  14  Week.  Rep.  694.  317. 

*  Burlen  v.  Shaunon,  3  Gray,  387.  *  Webbs  v.  State,  4  Cold.  199. 


293     OF  THE  PEESOXS  AFFECTED  BY  JUDGMENT.   §  159 

with  whicli  the  plaintiff  was  in  no  wa}^  connected,  for  the 
purpose  of  proving  that  the  defendants  were  partners. 
His  lordship  justified  his  ruling,  on  the  ground  that  one 
of  the  defendants,  who  had  denied  the  partnership  in  both 
actions,  had  a  full  opportunity  to  sustain  his  denial  in  the 
former  action,  by  every  means  of  proof  which  he  could 
now  employ.*  In  a  case  in  New  York,  one  of  two  heirs  or 
devisees  having  brought  an  action  against  an  executor, 
and  obtained  a  decree  establishing  the  interests  of  both, 
the  court  held  that  though  the  other  heir  or  devisee 
might,  if  he  thought  proper,  set  up  claims  at  variance 
with  the  decree,  yet  if  he  elected  to  claim  the  benefit  of  it, 
all  its  adjudications  of  rights  and  all  its  settlement  of 
principles  were  conclusive  in  his  favor  against  the  execu- 
tor.^ Recently,  it  has  been  held,  in  Maine,  that  a  written 
verdict  of  a  jury  finding  a  person  to  be  the  original  prom- 
isor of  a  note  instead  of  the  indorser,  as  he  claimed  to  be, 
is  conclusive  against  him  in  a  litigation  with  any  other 
party  to  the  note.^  In  the  circuit  court  of  the  United 
States  a  decision  was  made  to  the  effect  that  a  defendant 
who,  after  making  his  defense,  is  compelled  by  the  court 
to  pay  a  sum  of  money  to  plaintiff,  belonging  to  another, 
will  be  protected  from  a  suit  by  the  riglitful  owner,*  be- 
cause,—  1.  The  equities  are  equal,  it  being  no  greater  a 
hardship  for  one  man  to  lose  his  property,  than  for  an- 
other to  pay  a  debt  twice;  2.  That  the  lis  pendens  of  the 
former  suit,  being  notice  to  the  whole  world,  the  rightful 
owner  was  negligent  in  not  making  his  title  known;  3. 
The  right  of  the  true  owner  to  recover  his  property  re- 
mains unchanged,  but  the  person  of  whom  he  should 
recover  it  is  he  into  whose  possession  it  has  passed  by 
direction  of  a  competent  judicial  tribunal,  and  from  whom 
a  recovery  could  be  had,  as  in  the  cases  of  Le  Chevalier  v. 
Lynch,  Doug.  170,  and  Phillips  v.  Hunter,  2  H.  Black.  402. 

1  Whately  v.  Menheim,  2  E«p.  608.  »  Stiirtevant  v.  Randall,  53  Me.  149. 

2  O'Brien   v.    Heeuey,    2   Edw.   t'h.         *  Mayer  v.  Foulkrod,  4  Waah.  0.  C. 
246.  503. 


§    160       OF    THE    PERSONS    AFFECTED    BY    JUDGMENT.  294 

A  husband  and  wife  having,  in  an  action  between  them, 
litigated  the  right  to  moneys  which  she  had  drawn  from 
a  bank,  the  judgment  in  her  favor  was  held  to  be  conclu- 
sive evidence  against  the  husband  in  favor  of  the  bank,  in 
an  action  brought  by  him  against  it  to  recover  the  same 
moneys.'  The  fact  that  a  party  relying  upon  a  judgment 
as  a  conclusive  adjudication  in  his  favor  was  not  named 
in  the  record  of  the  former  action  is  not  conclusive  against 
him. 

There  are  various  circumstances,  as  we  shall  hereafter 
show,  in  which  a  party  not  named  in  an  action  may  be 
bound  by  the  judgment  therein;  and  as  a  general  rule, 
where  he  would  have  been  bound  had  the  decision  been 
against  his  interests,  he  is  entitled  to  the  benefit  of  the 
judgment  if  it  results  in  his  favor.  But  it  has  been  held 
that  before  he  can  invoke  the  protection  of  this  rule  he 
must  show  that  he  participated  in  the  former  action  for 
the  defense  of  his  own  interests,  and  with  the  knowledge 
of  the  adverse  litigant  therein.^ 

§  160.    Suit  not  Including  All   Former  Parties.  —  A 

diversity  of  opinion  exists  in  reference  to  the  effect  of  a 
judgment  or  decree,  in  a  subsequent  action,  in  which 
some,  but  not  all,  of  the  adversary  parties  to  such  judg- 
ment or  decree  are  litigants.  Parke,  B.,  in  the  course  of 
the  argument  before  him  in  Christy  v.  Tancred,  9  Mees.  & 
W.  438,  said:  "  There  is  no  authority  that  a  judgment 
against  A  and  B  jointly  is  evidence  in  an  action  against 
A  alone,  because  it  may  have  proceeded  on  an  admission 
of  B,  which  might  or  might  not  be  evidence  against  A, 
according  to  circumstances."  On  the  other  hand,  it  is 
stated,  with  the  utmost  confidence,  that  a  judgment  in  the 
case  of  A  \.  B  and  C  will  be  allowed  to  be  set  up  as  an 
estoppel  in  a  suit  between  A  and  B,  and  that  this  furnishes 
an  exception  to  the  general  rule  that  the  judgment  must 

'  Glaze  V.  Citizens'  N.  B.,  116  lad.  ■■«  Cannon  R.  Mfg.  Ass'n  v.  Rosters, 
492.  42  Miun.  123j  18  Am.  St.  Rep.  497. 


295  OF    THE    PERSONS   AFFECTED    BY    JUDGMENT.       §101 

have  been  between  the  same  parties.'  This  exception 
seems  to  be  consistent  with  the  general  rule.  It  violates 
none  of  the  principles  usually  applied  to  estoppels;  but^ 
on  the  contrary,  is  supported  by  those  principles  and  the 
considerations  of  public  policy  on  which  they  are  based. 
The  former  adjudication  ought  not  to  be  any  less  conclu- 
sive on  the  adverse  parties,  A  and  B,  because  other  persons 
shared  with  them  the  advantages  and  disadvantages  of 
the  former  suit.  The  matter  could  have  been  as  efficiently 
litigated  as  though  A  and  B  were  the  sole  parties  in  inter- 
est; and  the  opportunity  for  the  settlement  of  their  con- 
troversy having  been  so  given,  there  is  no  reason  why 
it  should  be  reopened. 

§161.  Between  Additional  Parties.  —  A  difference  of 
opinion  is  also  manifest  in  relation  to  the  effect  of  a  judg- 
ment in  a  subsequent  action  in  which  other  persons  as 
well  as  the  parties  to  the  judgment  are  litigants.  Accord- 
ing to  the  opinion  given  in  2  Smith's  Leading  Cases,  683, 
"a  judgment  against  a  co-contractor,  co-obligor,  or  co- 
partner will  not  be  evidence,  where  another  is  joined." 
This  seems,  in  most  cases,  to  be  perfectly  reasonable; 
otherwise  the  party  now  joined  will  either  be  benefited 
by  a  decision  which  could  not  have  prejudiced  him  if  it 
had  gone  the  other  way,  or  bound  by  an  adjudication 
wdiich  he  had  no  opportunity  to  resist.  If,  however,  in  the 
second  action  there  are  additional  nominal  parties  having 
no  interests  to  be  affected  by  it,  their  presence  will  not 
prevent  the  former  judgment  from  operating  as  an  estop- 
pel.'^ It  has  been  held  that  a  judgment  in  favor  of  A  is 
admissible  evidence  in  a  subsequent  controversy  involving 
the  same  questions,  and  in  which  A  and  B  are  phiintiffs, 
though  B,  then  being  disinterested,  was  a  witness  at  the 

'  Lawrence  v.   Hunt,  10  Wend.   80;  243;  Larum  v.  Wiliner,  ?<^  Iowa,  244; 

25  Am.  Dee.  539;  Ehle  v.  Bingham,  7  Russell    v.    Farqiiliar,    .55    Tex.     355; 

Barb.    404;     Dovvs    v.     McMicliael,     6  Wilson  v.  Buell,  1 17  Ind.  315. 

Paige,  139;  Thompson  v.   Roberts,   24  ^  H;,„na  w.    Read,   102  111.   59G;   40 

How.   233;   Davenport  v.   Barm'tt,   51  Am.  Rep.  COS. 
lud.  329;   Girardiu  v.  Dean,  49  Tex, 


§  162   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     296 

former  trial.'  If  an  action  is  brought  against  a  portion  of 
several  joint  promisors,  and  they,  waiving  the  non-joinder 
of  the  others,  proceed  to  trial,  and  recover  on  the  merits, 
the  judgment  is  admissible  in  favor  of  the  defendants  in 
a  future  action  against  all  the  promisors  on  the  same 
promise.'^  In  this  instance  it  happens  that  persons  not 
bound  by  a  former  suit  are  entitled  to  avail  themselves  of 
its  benefits,  because  their  liability  cannot,  against  their 
objection,  continue  after  that  of  their  co-contractors  has 
ceased,  and  because  the  defendants  in  the  former  suit 
must  either  be  deprived  of  the  fruits  of  their  litigation,  or 
those  fruits  must  also  be  given  to  persons  who  were  not 
parties  to  the  suit.  Besides,  if  the  plaintiff  established 
his  cause  of  action  against  the  joint  promisors  sued,  he 
could  not,  under  the  operation  of  the  law  of  merger,  re- 
cover against  any  other  of  the  promisors.  To  deny  the 
effect  of  the  judgment  as  an  estoppel  in  a  future  action 
against  all  the  promisors  would  place  him  in  a  better 
position  than  if  the  judgment  had  been  in  his  favor.  For 
the  reason  that  a  joint  debt  cannot  be  severed,  it  may 
happen  that  a  party  is  not  prejudiced  by  a  judgment  by 
which  he  would  otherwise  be  bound.  Thus  where,  in  an 
action  against  A,  a  town,  being  summoned  as  trustee, 
answered  that  it  owed  A  and  B,  and  judgment  was  there- 
upon entered  up  against  it  for  the  amount,  it  was  held 
this  judgment  cannot  defeat  a  subsequent  action  by  A  and 
B  for  the  same  amount.* 

Part  II.  —  OF  PRIVIES. 

§162.  Privies. —  ''Where  one  claims  in  privity  with 
another,  whether  by  blood,  estate,  or  law,  he  is  in  the 
same  situation  with  such  person  as  to  any  judgment  for 
or  against  him;  for  judgments  bind  privies  as  well  as  par- 
ties."*    "The  term  'privity'  denotes  mutual  or  successive 

'  Blakemore  v.  Canal  Co.,  2  Cromp.         ^  Hawes  v.  WaUham,  18  Pick.  451. 
M.  &  R.  133.  ♦  Woo.ls  V.  Montevallo  C.  &  T.  Co., 

»  French  v.  Neal,  24  Pick.  55.  84  Ala.  500;  5  Am.  St.  Rep.  393. 


297  OF    THE    PERSONS    AFFECTED    BY    JUDGMENT.       §   162 

relationship  to  the  same  rights  of  property."^  This  rela- 
tionship is  produced  either  by  operation  of  law,  by  descent, 
or  by  voluntary  or  involuntary  transfers  from  one  person 
to  another.  Hence  privies  have,  from  an  early  period  in 
the  history  of  the  common  law,  been  classified  as, — 

Privies  in  law,  as  lords  by  escheat,  tenant  by  curtesy, 
tenant  in  dower,  executor  or  administrator,  the  incumbent 
of  a  benefice,  and  all  others  that  come  in  by  act  of  the 
law; 

Privies  in  blood,  as  heirs  and  coparceners; 

Privies  in  estate,  as  where  there  is  a  mutual  or  succes- 
sive relationship  to  rights  of  property  not  occasioned  by 
descent  nor  by  act  of  law.^ 

Neither  this  nor  any  other  classification  of  privies  is 
of  any  considerable  importance  in  considering  the  opera- 
tion of  judgments.  All  privies  are  in  effect,  if  not  in 
name,  privies  in  estate.  They  are  bound  because  they 
have  succeeded  to  some  estate  or  interest  which  was 
bound  in  the  hands  of  its  former  owner;  and  the  extent 
of  the  estoppel,  so  far  as  the  privy  is  concerned,  is  limited 
to  controversies  aff'ecting  this  estate  or  interest.  The 
manner  in  which  the  estate  was  lawfully  accj^uired  neither 
limits  nor  extends  the  operation  of  the  estoppel  created 
by  a  former  adjudication,  and  is  therefore  immaterial. 
It  is  well  understood,  though  not  usually  stated  in  express 
terms  in  works  upon  the  subject,  that  no  one  is  privy  to 
.a  judgment  whose  succession  to  the  rights  of  property 
thereby  afi"ected  occurred  previously  to  the  institution  of 
the  suit.  A  tenant  in  possession  prior  to  the  commence- 
ment of  an  action  of  ejectment  cannot  therefore  be  law- 
fully dispossessed  by  the  judgment,  unless  made  a  party 
to  the  suit.^     The  assignee  of  a  note  is  not  aff'ected  by 

1  Greenl.  Ev.,  sec.  189.     A  privy  is  wliich  he  includes  executors  and  ad- 
one  holding  under  a  party  litiuant  and  niinistrators. 

deriving  title  subsequent  to  the  com-  ="  Sampson  v.   Ohleyer,  22  Cal.   200; 

mencementof  the  suit:  Hunt  r.  Haven,  Ex    parte    Reynolds,    1    Caines,    500; 

52  N.  H.  162.  Goerges  i.  Hufschtnidt,   44    Mo.    17!); 

~*2  Co.  Lit.  352b;  2PhillippsonEvi.  Garrison    r.  Savignac,  25    Mo.   47;   69 

dence,  13,  14.    Mr.  Greenle;if  adds  the  Am.  Dec.  448. 
class    privies    by    represeutatioa,    in 


§  1G2   OF  THE  PERSONS.  AFFECTED  BY  JUDGMENT.     298 

any  litigation  in  reference  to  it  beginning  after  the  as- 
signment.' No  grantee  can  be  bound  by  any  judgment 
in  an  action  commenced  against  bis  grantor  subsequent 
to  the  grant;  otherwise  a  man  having  no  interest  in  prop- 
erty could  defeat  the  estate  of  the  true  owner.^  Nor  will 
the  fact  that  a  grantee's  conveyance  is  not  recorded  bind 
him  by  a  judgment  against  his  grantor,  in  an  action 
commenced  after  the  execution  of  the  grant,  unless  the 
statute  expressly  gives  the  judgment  that  effect.^  The 
foreclosure  of  a  mortgage,  or  of  an}''  other  lien,  is  wholly 
inoperative  upon  the  rights  of  any  person  not  a  party  to 
the  suit,  whether  such  person  is  a  grantee,*  judgment 
creditor,^  attachment  creditor,^  or  other  lien-holder/  A 
judgment  of  freedom  in  favor  of  a  woman  does  not  estab- 
lish the  status  of  her  children  previously  born.  The  right 
of  property  in  the  children,  if  vested  in  some  person  at 
their  birth,  could  not  be  divested  by  any  proceeding  to 
which  he  was  not  a  party .^  It  is  essential  to  privity,  as 
the  term  is  here  used,  that  one  person  should  have  suc- 
ceeded to  an  estate  or  interest  formerly  held  by  another. 
He  who  has  so  succeeded  is  in  privity  with  him  from 
whom  he  succeeded,  and  all  the  estate  or  interest  which 
he  has  acquired  is  bound  by  judgment  recovered  against 
his  predecessor  while  he  held  such  estate  or  interest.^  On 
tlie  other  hand,  except  to  the  extent  which  one  person 
has  succeeded  to  an  estate  or  interest  formerly  held  by 
another,  there  can  be  no  privity  between  them,  no  matter 

'  Powers  V.  Heath's  Adni'r,  !20  Mo.  ''  Smith  v.  Claimants,  4  Nev.  254;  97 

319.  Am.  Dec.  531. 

^  Wiiislow  V.  Grindal,  2  Greenl.  64;  ^  Blooilgnod  v.  Grasey,  31   Ala.  575; 

Marshall  v.  Groom,  60  Ala.  121;  Cook  Davis  v.  Wood,  7  Orauch,  271. 

V.    Parham,    63    Ala.    456;    Hume    v.  '  Webster  w.  Maim,  56  Tex.  119;  42 

Franzen,  73  Iowa,  25;  Coles  v.  Allen,  Am.  Rep.  688;  Soward  v.   Coppage,  9 

64  Ala.,  98;  Bartero  v.  Real  E.  S.  B.,  S.  W.  Rep  389  (Sup.  Ct.  Ky.);  Stout- 

10  Mo.  App.  76.  more  v.  Clark,  70  Mo.  471;  Adams  Co. 

*  Vose  V.  Morton,  4  Cush.  27;  50  v.  Graves,  75  Iowa,  642;  Hair  t;.  Wood, 
Am.  Dec.  750;  Wiudom  v.  Schuppel,  58  Tex.  77;  Winston  v.  Westfeklt, 
39  Minn.  36.  22  Ala.  760;  58    Am.  Dec.  278;  Lips- 

*  Brush  V.  Fowler,  36  111.  58;  85  Am.  comb  v.  Postell,  38  Miss.  476;  77  Am. 
Dec.  382.  Dec.    651;    Shattuck   v.  Bascom,    105 

*  Brainard  w.  Cooper,  10  N.  Y.  356.     N.  Y.  39;  Pray  v.  Hegemau,  98  N.  Y. 
®  Lyon  V.  Santord,  5  Conn.  514.  351. 


299  OF    THE    PERSONS    AFFECTfilp    BY    JUDGMENT.       §  163 

what  were  or  are  their  relations  to  each  other  or  to  the 
same  piece  of  property.  Therefore  while  a  mortgagee  is 
in  privity  with  a  mortgagor  as  to  all  that  happened  before 
the  execution  of  the  mortgage,  he  is  not  in  privity  with 
respect  to  anything  happening  afterwards.^  The  fact  that 
parties  are  jointly  liable,  or  are  joint  owners  of  property, 
or  are  otherwise  associated  in  business,  does  not  place 
them  in  j)rivity  with  each  other,  except  in  so  far  as  one 
may  have  succeeded  to  the  interest  of  the  other.  Hence 
there  is  no  privity  between  the  maker,  indorser,  and  ac- 
ceptor of  a  note,^-  nor  between  the  surviving  member  of  a 
partnership  and  the  heirs  of  a  deceased  partner.'  Kin- 
ship, whether  by  affinity  or  consanguinity,  does  not  create 
privity,  except  where  it  results  in  the  descent  of  an  estate 
from  one  to  another.  Therefore  there  is  no  privity  be- 
tween husband  and  wdfe,  or  parent  and  child,  or  other 
relatives,  when  neither  of  them  has  succeeded  to  an  estate 
or  interest  in  property  formerly  held  bv  the  other. 

§  ]63.  Administrators  and  Executors.  —  A  judgment 
against  an  administrator  is  binding  on  the  creditors  and 
legatees  of  the  estate.*  If  in  an  action  by  an  administra- 
tor against  the  widow  for  property  claimed  as  assets  of  the 
estate  she  recover,  the  judgment  in  her  favor  is,  in  the 
absence  of  fraud,  conclusive  on  the  creditors.^  A  decree 
against  an  executor  is  binding  on  an  administrator  de 
bonis  non,^  according  to  some  of  the  authorities;  but  the 
'preponderance  of  the  decisions  on  the  subject  is  to  the 
effect  that  there  is  no  privity  between  an  executor  or  ad- 
ministrator and  an  administrator  de  bonis  non,  and  that 

1  Cook  V.  Parham,  63  Ala.  456;  Redmond  v.  Coffin,  2  Dev.  Eq.  437; 
Shattuck  V.  Bascom,  105  N.  Y.  39.  Hooper   v.    Hooper,   32  W.    Va.    526; 

2  Jordan  V.  Ford,  7  Ark.  416;  Crabb  Bell  v.  Bell,  25  S.  C.  14i);  Stone  v. 
V.  Larkin,  9  Bush,  154;  Wells  ?-.  Coyle,  Wood,  16  111.  177;  Castdlaw  v.  Guil- 
20  La.  Ann.  396;  Feiin  v.  Diigdale,  31  martin,  54  Ga.  299;  but  a  judgment  in 
Mo.  580;  Leslie  v.  Bonte,  22  N.  E.  an  action  between  the  adniinistrator 
Eep.  594  (111.).  and  heirs  does  not  bind  the  legatees 

^  Trustees  v.  Laurence,  11  Paige,  80;  not  parties:  Valsaiu  r.  Cloutier,  3  La. 

Stur^es  I'.  Beach,  1  Conn. 507;  Moore's  170;    22    Am.    Dec.    179;    Shepnian  v. 

Appeals,  34  Pa.  St.  411;  Buckingham  Rollin.s,  98  N.  Y.  311. 

V.  Lu<llum,  37  N.  J.  Ef].  137.  M'ickens?\  Yarborongh.  .30  Ala.  408. 

*  Mouldiug  V.  Gosse'tt,  15  S.  C.  565;  *  Mauigault  v.  JJeas,  1  Bail.  Eq.  283. 


§  163      OF    THE    PERSONSft-AFFECTED    BY    JUDGMENT.  800 

a  judgment  against  one  is  not  evidence  against  the  other/ 
and  that  the  recovery  of  judgment  by  an- administrator  is, 
after  his  death,  no  bar  to  an  action  by  his  successor."  If 
letters  of  administration  are  granted  in  different  states  to 
different  persons,  there  is  no  privity  between  such  admin- 
istrators. A  judgment  obtained  against  one  will  furnish 
no  cause  of  action  against  the  other  to  affect  assets  in  the 
hands  of  the  latter.^  And  the  converse  of  this  proposition 
is  true;  for  a  judgment  obtained  by  one  of  the  administra- 
tors cannot  be  asserted  as  a  cause  of  action  by  the  other.* 
Where  there  is  a  will,  and  an  executor  thereof,  or  an 
administrator  with  the  will  annexed,  in  another  jurisdic- 
tion, there  is  said  to  be  privity  between  them.  "  Between 
executors  of  the  same  decedent  in  different  jurisdictions 
there  is  a  privity  derived  from  or  through  the  will  of  the 
testator,  and  a  judgment  or  decree  against  either  is  evi- 
dence against  the  other,  and  may  be  enforced  against 
each,  and  is  sufficient  to  ground  a  suit  or  action  against 
either  executor.  An  administrator  with  the  will  annexed 
is,  in  legal-  contemplation,  executor  of  the  will,  and  a  de- 
cree against  a  domiciliary  executor  binds  every  executor 
of  the  same  will  in  every  jurisdiction."^  The  authority 
cited  in  support  of  the  language  just  quoted  does  not, 
however,  support  it,  except  to  the  extent  of  affirming  that 
there  is  a  privity  between  different  executors  of  the  same 
decedent,  not  existing  between  his  diff'erent  administra- 
tors. "  Notwithstanding  the  privity  that  there  is  between 
executors  to  a  testator,  we  do  not  think  that  a  judgment 
obtained  against  one  of  several  executors  would  be  conclu- 
sive as  to  the  demand  against  another  executor,  qualified 

1  Thomas   v.   8tearns,   33  Ala.    137;  'McLean  v.  Meek,  IS  How.  16;  Stacy 

Rogers  v   Grannis,  20  Ala.  247;  Weii-  v.    Thrasher,    6    How.    44;    Brodie    v. 

rick  V.  McMiinlo,  5  Rand.  51;  Graves  Bickley,  2  Rawle,  431;  Ela  v.  Edwards, 

V.  Flowers,  51  Ala.  402;  23  Am.   Rep.  13  Allen,  4S;  90  Am.  Dec.  174;  Merrill 

555;  Martin  v.   Ellerbe,    70  Ala.   .3-26;  ?\  N.  E.  Ins.  Co.,  103  Mass.  245;  4  Am. 

Alsop  V.  Aiather,  8  Conn.  5S4;  21  Am.  Rep.  548;  Jones  v.  Jones,  15  Tex.  463; 

Dec.  70.3.  65  Am.  Dec.  174. 

^  Note  259  to  Phillipps  on  Evidence,  *  Story  on  Conflict  of  Laws,  sec.  522; 

by  C,  H  ,  &  E. ;  Grout  v.  Chamberlain,  Rosenthal  v.  Renick,  44  111.  207. 

4  Mass.  611;  Allen  v.  Irwin,  1  Serg.  &  R.  "  Garland  v.  Garland,  84  Va.  189. 
649;  Barnehurst  v.  Yelverton,  Yelv.  83. 


801     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  163 

in  a  different  state  from  that  in  which  the  judgment  was 
rendered.  But  such  a  judgment  may  be  admissible  in 
evidence  against  an  executor  in  another  jurisdiction,  for 
the  purpose  of  showing  that  the  demand  had  been  carried 
into  judgment  in  another  jurisdiction  against  one  of  the 
testator's  executors,  and  that  the  others  were  precluded 
from  pleading  prescription  or  the  statute  of  limitations 
upon  the  original  cause  of  action."  ^  Between  the  real 
and  personal  representatives  of  a  deceased  person  there  is 
no  privity.  Hence  a  judgment  against  an  administrator 
or  executor  is  never  conclusive  against  the  heirs  or  devi- 
sees,^ and  a  judgment  for  or  against  an  heir  or  devisee 
has  no  effect  upon  an  administrator  or  executor.^  A  de- 
cree against  an  executor  is  not  binding  on  the  heir,  "be- 
cause he  is  not  a  party  to  the  suit,  cannot  offer  testimony, 
adduce  evidence  in  opposition  to  the  claim,  nor  appeal 
from  the  judgment."  *  The  allowance  of  a  claim  against 
an  estate  by  the  administrator  and  the  probate  judge  has 
the  same  effect  as  a  judgment.  But  as  the  heirs  are  not 
bound  by  a  judgment  against  the  administrator,  they  are 
at  liberty  to  dispute  any  claim  so  allowed,  because  the 
allowance  has  no  higher  effect  than  a  judgment.  If  the 
allowed  claims  are  made  the  basis  on  which  to  obtain  an 
order  to  sell  the  real  estate,  the  heirs  are  not  precluded 
from  contesting  them  as  freely  as  though  they  had  ac- 
quired none  of  the  properties  of  a  judgment;  for  as  to  the 
heirs,  they  are  not  yet  res  judicata.^  When  a  judgment  or 
quasi  judgment  has  been  recovered  against  an  adminis- 

'  Hill  V.  Tucker,  13  How.  467.  good  v.   Manhattan  Co.,  3  Cow.   612; 

»    2  McCoy  V.  Nichols,  4  How.  (Miss.)  15  Am.   Dec.   304;  Teas:ae  v.  Corbett, 

31;  Cowen,   Hill,   ami  Edwards's  note  57  Ala.  529;  Starke  v.  Wilson,  65  Ala. 

259  to  Phillipps  on  Evidence;  Vernon  576;  Sharp  v.  Freeman,  45  N.  Y.  802, 

V.  Valk,  2  Hill  Eq.  257;  Collinsoii  v.  Swiggart  v.  Harber,  4  Scam.  364;  39 

Owens,    6   Gill   &  J.    4;  Robertson  v.  Am.  Dec.  418. 

Wright,    17  Gratt.   5.34;  Early  v.  Gar-  ^  Dorr   v.   Stockdale,    19  Iowa,  269; 

land,  13  Gratt.    1;  Hudgin  v.  Hiidgin,  Douglass  i'.  McCarer,  80  Ind.  91. 

6  Gratt.  .320;  52  Am.  Dec.  124;  Birely'a  *  Garnett  v.  Macon,  6  Call,  308. 

ExVa  V.   Staley,   5  Gill  &  J.   432;    25  ^  Beckett  v.   Selover,  7  Cal.  215;  68 

Am.    Dec.    303;    Hardaway   v.    Drum-  Am.   Dec.   237;  Estate    of    Hidden,  23 

mond,  27  Ga.   221;  73   Am.  Dec.  730;  Cal.     362;    Stone   v.    Wood,    16    111. 

Ford  V.   Heuaessey,  70   Mo.  580;  Os-  177. 


§  163   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     302 

trator  or  executor,  and  proceedings  are  taken  to  compel 
its  payment  by  the  sale  of  real  estate,  the  majority  of  the 
authorities  seem  to  treat  it  as  prima  facie  evidence  of  the 
claim,  and  to  require  the  heir  to  assume  the  burden  of 
showing  it  to  be  unjust,^  while  the  minority  insist  that 
it  is  not  admissible  against  the  heirs,  and  that  those  hold- 
ing such  judgment  must  establish  their  demand  as  though 
no  prior  recovery  or  allowance  thereof  had  been  had.^  If 
the  heir  is  also  executor  or  administrator,  he  represents 
in  his  two  capacities  the  interests  of  one  and  the  same 
person,  and  has  full  opportunity,  in  a  suit  against  liim- 
self  as  the  personal  representative,  to  protect  his  rights 
as  successor  to  the  realty.  There  is  no  reason  why  one  so 
situated  should  have  the  right  to  be  twice  heard  upon 
the  same  controversy;  and  a  judgment  against  him  as 
administrator,  establishing  a  claim  against  the  estate, 
should  conclude  him  as  heir.*  The  courts  of  West  Vir- 
ginia, however,  regard  the  circumstance  that  the  admin- 
istrator is  also  tlie  heir  as  accidental  and  immaterial,  and 
deny  that  a  judgment  against  him  as  administrator  is 
evidence  against  him  as  heir.'*  Where  a  judgment  against 
an  administrator  is  not  binding  upon  the  heir,  it  cannot 
deprive  him,  when  his  interests  are  sought  to  be  reached, 
of  the  benefit  of  the  plea  of  the  statute  of  limitations.^ 

One  who  suffers  an  administrator,  who  has  no  authority, 
to  sue  and  to  recover  judgment  for  a  debt  due  the  estate, 
and  then  pays  the  judgment,  cannot  thereby  defeat  an 
action  brought  by  an  administrator  having  the  right  to 
sue.^     A  written  agreement  to  convey  lands  is  a  covenant 

real.     If  broken  in  the  lifetime  of  the  covenantee,  it  passes 

• 

»  Steele  v.  Liniberger,  59  Pa.  St.  308;  McKay  v.    McKay,   3.3  W.    Va.    724; 

Staples  V.  Staples,  85  Va.   76,  by  stat-  Boar<l  v.  Callahan,  :i3  VV.  Va.  209. 

ute  of  February   19,    1884;  Sergeant's  =*  Boykiu    r.     Cook,     6]     Ala.     473; 

Heirs  v.  Ewing,  36  Pa.  St.  156;  Stone  Stewart  v.   Montgomery,    23   Pa.    St. 

V.    Wood,    16    111.    177;    Rosenthal    v.  410. 

Renick,  41  111.  202:  Garther  v.  Welch,  *  Merchants'  Bank  v.   Good,    21  W. 

3  Gill  &  J.   259;  Nichols  v.  Bay,   32  Va.  455. 

N.  H.  133;  64  Am.  Dec.  358.  ^  Saddler  v.   Kennedy,    26  W.   Va. 

^  Daingertield  v.   Smith,  83  Va.  81;  636;  James    v.   Commercial    Bank,    7S 

Brewes  v.    Lawson,    76  Va.    36;  Mer-  Ky.  413. 

chants'  Bank  v.  Good,  21 W.  Va.  455;  *  Pond  v.  Makepeace,  2  Met.  114. 


303   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  163  a 

to  his  personal  representatives  after  his  death,  though  he 
had  commenced,  an  action  for  its  specific  execution.  Tlie 
revival  of  the  suit  by  the  heirs,  and  their  obtaining  a  de- 
cree in  it  for  the  performance  of  the  agreement,  in  no  wise 
affects  the  administrator.  He  may  afterward  recover 
damages  for  the  breach  of  the  contract  to  convey.  In 
such  a  case  there  might  be  a  decree  in  favor  of  the  heirs 
for  specific  execution,  saving  the  rights  of  the  creditors; 
but  the  personal  representative  is  an  indispensable  party, 
whose  rights  cannot  be  affected  if  he  is  omitted.^  As 
there  is  no  privity  between  the  personal  representative 
and  the  heir,  the  latter  cannot  have  the  advantage  of  an 
adjudication  in  favor  of  the  former.  Hence  a  perpetual 
injunction  obtained  by  an  executor  to  prevent  R.  from 
prosecuting  any  action  for  the  recovery  of  the  arrears  of 
an  annuity  against  such  executor  or  other  representative 
of  the  testator  does  not  prohibit  R.  from  prosecuting  such 
action  against  the  heirs.^  Of  course  there  is  no  privity 
between  an  executor  and  administrator,  and  one  claiming 
to  have  acquired  title  from  the  decedent  in  his  lifetime. 
Therefore  a  judgment  in  an  action  against  an  administra- 
tor, requiring  him  to  include  certain  property  in  his  in- 
ventory of  the  effects  of  his  intestate,  cannot  estop  persons 
who  claim  that  such  property  was  given  to  them  by  the 
decedent  from  maintaining  their  claim.^ 

§  163  a.  Relation  between  Administrator  and  Heirs 
Modified  by  Statute.  —  Section  1581  of  the  Code  of  Civil 
Procedure  of  California  declares  that  the  executor  or  ad- 
ministrator must  take  into  his  possession  all  the  estate  of 
the  decedent,  real  and  personal.  Section  1582  of  the  s:une 
code  states  that  "  actions  for  the  recovery  of  any  property, 
real  or  personal,  or  for  the  possession  thereof,  and  all 
actions  founded  upon  contracts,  may  be  maintained  by  or 
against  executors  and  administrators,  in  all  cases  in  which 

1  Combs  V.  Tarlton's  Adm'r,  2  Dana,  '  Hill  v.  Stevenson,  G3  Me.  3C4;  18 
454.  Am.  ilep.  231. 

'  Dale  V.  Kosovelt,  1  Paige,  35. 


§  1G3  a   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   804 

the  same  might  have  been  maintained  by  or  against  their 
respective  testators  or  intestates."    An  action  of  ejectment 
having  been  brought  by  an  administrator,  and  judgment 
having  been  rendered  therein,  the  question  arose  as  to  the 
effect,  under  these  statutory  provisions,  of  this  judgment 
upon  the  heirs  of  the  deceased.     The  court  held  the  judg- 
ment to  be  binding,  for  the  following  reasons:  "  The  prin- 
ciple of  law  upon  wdiich  the  estoppel  rests  has  reference 
to  the  fact  that  in  the  former  action   the  hostile  titles 
were    directly   opposed    before    the  court  rendering   the 
former  judgment,  and  that  the  superiority  of  the  one  over 
the  other  was  ascertained  and  fixed  by  that  judgment. 
That  an  administrator  appearing  in  an  action  involving 
the  interests  of  the  estate  represents  as  well  the  heirs  as 
the  creditors  of  the  deceased,  is  well  settled.     But  he  rep- 
resents not  only  the  interest  of  heirs  and  creditors,  but 
also  the  title  wdiich  the  deceased  had  at  the  time  of  his 
death.     When,  therefore,  in  an  action  of  ejectment,  an 
administrator,  seeking  to  recover  the  real  estate  of  his  in- 
testate, alleges  upon  the  record  the  seisin  of  that  intestate, 
he  thereby  tenders  an  issue  directly  upon  the  title  to  the 
premises;  if  issue  be  joined  by  the  defendant  upon  this 
point,  and  judgment  be  rendered,  it  is  necessarily  an  ad- 
judication that  the  title  of  the  intestate  was  or  was   not 
superior  to  the  title  set  up  by  the  defendant  in  the  action." 
After  proceeding  further,  to  show  that  the  issues  in  the 
action  by  the  administrator  are  the  same  as  the  issues  in 
any  action  subsequently  brought**by  the  heir  relying  upon 
title  derived  from  his  ancestor,  the  court  concludes  that 
"if  upon  an  action  brought  by  the  administrator  against 
a  defendant  in  possession  of  real  property,  upon  the  alle- 
gation of  seisin  in  the  deceased  at  the  time  of  his  death, 
it  be  adjudged  that  the  intestate  w^as  not  seised,  or  that 
the  defendant  had  the  better  title,  the  legal  consequence 
follows  that  the  administrator,  the  heirs  and  creditors,  and 
all  persons  subsequently  asserting  title  as  having  vested 
in  themselves  by  reason  of  the  death  of  the  intestate,  are 


305  OF    THE    PERSONS    AFFECTED    BY    JUDGMENT.       §  164 

alike  estopped  to  deny  the  superiority  of  the  title  of  the 
defendant  adjudicated  in  the  former  action."^  Where 
the  statute  gives  administrators  rights  not  possessed  hy 
them  at  the  common  law,  and  in  effect  makes  them  the 
representatives  of  the  estates  of  their  intestates,  and  au- 
thorizes them  to  prosecute  and  defend  actions,  the  courts 
have  generally  given  to  the  judgments  in  such  actions  the 
same  effect  as  if  the  heirs  and  all  other  parties  in  interest 
were  nominal  parties  thereto,^  and  have  therefore  held 
that  decrees  foreclosing  mortgages,  to  which  only  the  ad- 
ministrator of  the  mortgagor  was  a  party,  divested  the 
heirs  of  their  estate.^  In  Ohio  and  North  Carolina,  judg- 
ments against  administrators  are,  in  proceedings  to  require 
the  sale  of  real  estate  to  pay  debts,  conclusive  against  the 
heirs,  in  the  absence  of  fraud  or  collusion.* 

§  164.  Principal  and  Agent.  —  Agents  and  principals 
do  not,  as  such,  have  any  mutual  or  successive  relation- 
ship to  rights  of  property.  They  are  not  in  privity  with 
each  other."  If  the  principal  is  ever  bound  by  a  judgment 
against  his  agent,  it  is  in  those  cases  in  which  he  author- 
ized the  institution  of  the  suit,  of  which  we  shall  treat  in 
the  latter  part  of  this  chapter.  An  action  by  and  in  the 
name  of  an  agent,  for  trespass  for  taking  coin  from  his 
possession  and  converting  it,  in  which  the  jury  found 
that  the  property  belonged  to  the  principal,  and  therefore 
gave  the  plaintiff  nominal  damages,  is  no  bar  to  an  action 
by  and  in  the  name  of  the  principal,  unless  it  can  be 
shown  that  the  former  suit  was  brought  under  his  direc- 
tion and  for  his  benefit.^  A  note,  transferred  by  delivery, 
was  by  the  transferee  placed  in  the  hands  of  an  agent, 

1  Cunninghams.  Ashley,  45  Cal.  485;  105  N.  C.  222;  Speer  v.  James,  94  N.  C 

Meeks  v.  Vassaiilt,  3  Saw.  206;  De  la  417. 

Ossa  V.  Oxarat,  58  Cal.  101.  *  Hayes  v.  Bickelhoupt,  24  Fed.  Rep. 

*  Conolly     V.     ConoUy,     26     Minn.  806.    If  an  agent  procures  a  judgment 
350.  in  favor  of  his  principal  by  fraud,  the 

'  Bayly  v.  Mueke,  65  Cal.  349;  Mer-     latter,  thoutrh  personally  innocent,  can- 
ritt  V.  Baffin,  24  Fla.  320.  not  retain  the  fruits  thereof:  Webster 

*  Faran  v.  Robinson,  17  Ohio  St.  242;     v.  Diamond,  36  Ark.  5.32. 

93  Am.  Dec.  617;  Proctor  v.  Troctor,         *  Pico  f.  Webster,  12  Cal.  140. 
JUDG.  I.  — 20 


§  165   OP  THE  PERSONS  AFFECTED  BY  JUDGMENT.     306 

with  orders  to  demand  payment,  and  if  necessary,  to 
place  it  in  the  hands  of  an  attorney  for  collection  by  suit. 
Payment  not  being  made  upon  demand,  the  note  was 
given  to  an  attorney.  He,  on  account  of  his  ignorance  of 
its  ownership,  sued  in  the  name  of  the  agent,  and  the 
suit  was  successfully  defended  on  a  plea  of  set-off  against 
the  plaintiff.  The  true  owner,  having  no  notice  of  this 
action,  was  permitted  to  afterward  recover  in  his  own 
name.^ 

§  165.     Assignees  and  Alienees.  —  A  person  who  pur- 
chases property,  real  or  personal,  is  entitled  to  the  benefits 
and  subjected  to  the  disadvantages  which,  by  the  opera- 
tion of  final  adjudications,  had  attached  to  the  property 
in  the  hands  of  its  former  owner.     A  mortgagee,  having 
commenced  an  action  for  the  possession  of  the  mortgaged 
premises,  was  opposed  by  the  mortgagor's  setting  up  the 
defense  of  usury.     Failing  in  this  defense,  the  mortgagor 
conveyed  to  a  third  person,  who  brought  a  writ  of  entry 
against  the  mortgagee,  and  sought  to  support  his  action 
by  proof  of  the  same  usury  which  had  been  presented  as 
a  defense  in  a  former  suit.     Whereupon  it  was  held  that 
the  former  judgment  was  an  estoppel  running  with  the 
land,  and  preventing  the  grantee  of  the  mortgagor  from 
prevailing  in  any  action  brought  on  the  title  acquired  by 
his  conveyance.^     A  verdict  and  judgment  against  a  feme 
sole  will  be  binding  on  her  future  husband,  so  far  as  he 
represents  her  person  or  succeeds  to  her  estate.'''     On  the 
other  hand,  the  grantee  of  real  estate,  though  a  witness 
on  the  trial  of  the  former  cause,  may  assert  the  judgment 
in  favor  of  his  grantor  in  reference  to  the  real  estate,  as 
an  estoppel.*     And  a  judgment  against  a  claimant,  upon 

1  Lawrence  v.  Ware,   37  Ala.   553.  Warfield  v.  Davis,  14  B.  Mon.  40;  Mc- 

There    may    be    instances    of    actions  Kinzie  v.  Railroad,  28  Md.  16. 

against   agents   for    the  possession  of  '^  Adams  v.  Barnes,  17  Mass.  365. 

the   property   of   their   principals,    in  ^  Hawkins  v.  Lambert,   18  B.  Moru 

which  the  latter  may  be  bound  by  the  99. 

judgment  by  being  given  notice  of  the  *  2  Phillipps  on  Evidence,  15,  16. 
action  and  an  opportunity  to  defend: 


307     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  167 

the  trial  of  the  right  of  personal  property  levied  under 
execution,  is  conclusive  evidence  against  such  claimant 
in  a  subsequent  controversy  between  him  and  the  pur- 
chaser at  the  execution  sale.^  If  a  judgment  is  rendered 
against  the  assignee  of  a  note,  who  afterwards  retransfers 
it  to  the  original  payee,  the  latter  is  bound  by  the  judg- 
ment;^ but  if  one  is  the  payee  of  two  notes  made  by  the 
same  maker,  and  arising  out  of  the  same  transaction,  and 
transfers  one  of  them,  and  his  assignee  commences  action 
thereon  and  is  defeated,  the  judgment  cannot  afifect  an 
action  by  the  payee  on  the  other  note.* 

§166.  Bailors  and  Bailees. —The  bailor  and  bailee 
both  have  such  an  interest  in  the  property  as  authorizes 
either  to  maintain  an  action  for  its  injury  or  conversion. 
A  judgment  against  a  bailor,  in  an  action  in  reference  to 
the  property,  is  a  bar  to  any  subsequent  suit  or  defense 
by  the  bailee.*  A  recovery  and  satisfaction  by  either  is  a 
bar  to  any  subsequent  suit  by  the  other;  but  a  recovery 
and  satisfaction  in  an  action  commenced  by  the  bailee  is 
said  to  be  no  defense  to  an  antecedent  action  in  the  name 
of  the  bailor.^  A  bailee  delivering  goods  to  a  third  per- 
son, believing  him  to  be  the  owner,  may  avail  himself,  in 
any  action  by  the  bailor,  as  an  estoppel,  of  a  judgment 
against  the  bailor,  in  an  action  wherein  he  sought  to  re- 
cover the  same  goods  from  the  person  to  whom  the  bailee 
had  delivered  them.® 

§  167.  Garnishees.  —  "  Where  one  is  by  garnishment 
involuntarily  made  a  party  to  a  suit  in  which  he  has  no 
personal  interest,  he  is  fully  protected  by  the  proceedings 
in  law,  provided  he  acts  in  obedience  to  the  orders  of  the 
court  in   the    surrender  and  payment   of  the   property 

1  Shirley  v.  Fearne,  33  Miss.  653;  69  Rep.  1042;  Green  r.  Clarke,  12  N.  Y. 

Am.  Dec.  375.  343. 

'  Leslie  v.  Bonte,  130  111.  498;  Sow-  *  Steamboat    v.    McCraw,    31    Ala. 

ard   V.    Coppage,    9  S.    VV.   Rep.    389  659. 

(Ky.).  «  Burton  r.  Wilkinson,   18  Vt.   186; 

»  Gerrish  v.  Bragg,  55  Vt.  329.  46  Am.   Dec.  145;  Bates  v.  Stanton,  1 

*  Hughes  V.  Pipe  Lines,  23  N.  E.  Duer,  79. 


§  167   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     308 

attached."  '  But  a  judgment  against  a  garnishee  is  never 
conclusive  against  the  principal  that  the  amount  for 
which  the  garnishee  has  been  made  liable  is  the  full 
amount  due  from  him;  otherwise  a  garnishee,  by  confess- 
ing part  of  the  debt,  could  avoid  payment  of  the  residue. 
He  will  in  no  case  be  protected  by  the  judgment  beyond 
the  amount  it  required  him  to  pay;^  and  this  is  the  rule 
applied  to  judgments  against  a  trustee.^  But  a  judgment 
for  or  against  a  garnishee,  in  an  attachment  issued  in 
favor  of  one  creditor,  is  not  binding  on  any  other  attach- 
ing creditor.  Between  the  two  creditors  there  is  no 
privity.*  After  a  suit  is  begun,  and  a  person  is  sum- 
moned as  the  trustee  of  the  defendant,  the  plaintiff  has 
the  right  to  litigate  the  question  of  the  trustee's  indebted- 
ness, unless  some  litigation  has  been  previously  pending 
in  reference  thereto.  Therefore  a  judgment  in  favor  of 
the  trustee,  in  an  action  between  him  and  the  defendant, 
is  not  evidence  against  plaintiff  to  prove  that  the  party 
summoned  as  trustee  was  not  indebted  to  the  defendant 
when  summoned,  except  the  judgment  be  the  result  of  a 
suit  pending  before  the  service  of  the  trustee  process.®  If 
the  garnishee  denies  his  liability  to  the  defendant,  the 
plaintiff  is  entitled  to  offer  in  evidence  a  judgment  recov- 
ered by  the  defendant  against  the  garnishee,  and  the  lat- 
ter is  estopped  thereby  from  maintaining  that  he  is  not 
indebted  in  the  amount  of  the  judgment  so  recovered 
against  him.®  If  the  debt  garnished  has  been  assigned, 
the  judgment  against  the  garnishee  will  protect  him  if  he 
had  no  notice  of  the  assignment;^  but  if  he  receives  notice 
of  the  assignment,  even  after  he  has  filed  his  answer,  it  is 

'Herman    on    Estoppel,    sec.    119;  ^Groves  v.    Brown,    11   Mass.   334; 

Canady  v.  Detrick,  S3  Ind.  485;  Ladd  Brown  v.  Dudley,  33  N.  H.  511. 

V.    Jacobs,    64    Me.    347;    Morgan    v.  *  Wheeler  v.  Aldrich,   13  Gray,  51; 

Neville,  74  Pa.  St.  52;  Adams  v.  Filer,  Straus  v.  Ayres,  87  Mo.  348;  King  v. 

7  VS^'is.  306;  73  Am.  Dec.  410;  Warner  Faber,  51  Pa.  St.  387;  Adams  v.  Filer, 

■y.Conant,  24  Vt.  351;  58  Am.  Dec.  178.  7  Wis.  30G;  73  Am.   Dec.  410;  Bread- 

2  Puffer  V.   Graves,  26  N.   H.   256;  ing  v.  Siegworth,  29  Pa.  St.  396;  Tarns 

Drew  V.  Towle,  27  N.  H.  412;  59  Am.  v.  Bullitt,  35  Pa.  St.  308. 

Dec.   380;  Carpenter  v.   McClure,    37  *  Webster  v.  Adams,  58  Me.  317. 

Vt.  127;  Barton  v.  Allbright,   29  Ind.  «  Fuller  v.  Foote,  56  Conn.  341. 

489;  Tarns  v.  Bullitlj,  35  Pa.  St.  308.  '  King  v.  Vance,  46  Ind.  246. 


309     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  1G9 

his  fluty  to  disclose  it,  and  failing  to  do  so,  he  will  not  be 
protected  by  the  judgment.'  The  assignee,  on  his  part, 
may  be  notified  to  appear  and  maintain  his  claims,  and 
if  from  his  neglect  to  do  so  judgment  is  entered  against 
the  garnishee,  the  assignee  is  estopped  by  it  from  enfor- 
cing his  assignment.* 

§  168.  Ancestors  and  Heirs  and  Devisees.  —  An  heir  or 
devisee  is  in  privity  with  his  ancestor  or  testator.  There- 
fore a  verdict  for  or  against  the  ancestor  or  testator  is 
evidence  for  or  against  an  heir  or  devisee  in  controver- 
sies in  relation  to  property  descended  from  the  ancestor 
to  the  heir.'  No  such  privity  exists  between  heirs  and 
devisees.  A  decree  against  the  former,  establishing  that 
a  conveyance  of  certain  lands  was  made  by  the  ancestor, 
has  no  effect  upon  the  rights  of  the  latter.* 

§169.  Lessor  and  Lessee.  —  The  lessee  and  his  as- 
signees are  in  privity  with  the  lessor  and  his  successors 
in  interest;  and  therefore  a  judgment  for  or  against  the 
former,  before  the  making  of  the  lease,  is  evidence  for  or 
against  the  latter.®  Where  an  action  of  ejectment  was 
maintained  by  the  assignee  of  the  lessor  against  the  as- 
signee of  the  lessee,  for  non-payment  of  rent,  under  a 
lease  containing  a  covenant  for  re-entry,  the  judgment 
was  held  to  be  a  bar  to  any  recovery  in  any  action  by  a 
party  claiming  under  the  purchaser  at  a  foreclosure  sale, 
under  a  mortgage  executed  by  the  assignee  of  the  lessee, 
subsequent  to  the  execution  of  the  lease,  but  prior  to  the 
commencement  of  the  ejectment  suit,  the  decree  of  fore- 
closure being  entered  after  the  suit  in  ejectment  was 
brought,  but  before  it  terminated.^  If  a  lessee  brings  an 
action,  in  respect  to  the  lands  leased,  without  the  direc- 
tion or  authority  of  the  lessor,  the  latter  is  not  bound  by 

1  Lewis  V.    Uunlop,    57    Miss.    130;  891;    Ladd   v.    Durkin,    54   Cal.    395; 

Seward  v.  Hefflin,  20  Vt.  144;  Larrabee  Lock  v.  Norborno,  ,3  Mod.  142. 

V.  Knight,  69  Me.  320.  *  Cowart  v.  WiUianis,  34  Ga.  167. 

»  Rothschild  z).  Burton,  57  Mich.  540.  *  Hessel  v.  Johnson,  124  Pa.  St.  233. 

•  Sharkey  v.  Blankston,  30  La.  Ann.  *  Bennett  v.  Couchuiau,  48  Barb.  73. 


§  170       OF    THE    PERSONS    AFFECTED    BY    JUDGMENT.  810 

the  result  of  the  suit,  and  therefore  cannot  bind  another 
by  it/  A  landlord  is  not,  in  general,  affected  by  any 
litigation  against  or  in  favor  of  his  tenant  in  respect  to 
the  demised  premises;^  but  if  the  issue  is  such  as  involves 
the  lessor's  title,  and  he  assumes  the  defense  or  the  prose- 
cution of  the  suit,  the  judgment  operates  upon  his  title  as 
though  he  were  named  as  a  party  to  the  action.^  In  some 
cases  the  law  has  been  held  otherwise.  In  South  Caro- 
lina, a  landlord  is  not  bound  by  a  judgment  against  his 
tenant,  though  the  tenant  set  up  the  landlord's  title,  and 
the  landlord  was  present  in  court  at  the  trial,  assisting  the 
tenant,  and  though  it  is  made  to  appear  that  his  efforts 
were  in  no  way  impeded  by  the  tenant,  and  full  opportu- 
nity was  given  the  landlord  to  examine  and  cross-examine 
the  witnesses,  because  if  he  had  been  a  defendant  it  might 
have  caused  some  change  in  the  jury,  or  in  the  admissi- 
bility of  evidence,  or  have  in  some  manner  affected  the 
result.*  In  another  case,  a  judgment  against  a  tenant, 
after  a  defense  conducted  by  the  landlord,  was  held  admis- 
sible, but  not  conclusive,  against  the  latter.^  "Upon  the 
ground  that  the  lessor  of  plaintiff  and  the  tenant  are  sub- 
stantially real  parties  to  an  ejectment,  a  judgment  in 
ejectment  is  admissible  evidence  in  an  action  for  mesne 
profits,  and  this,  whether  the  action  be  brought  by  the 
nominal  j^laintiff  or  by  the  lessor  of  this  plaintiff,  and 
whether  the  judgment  be  upon  verdict  or  by  default."^ 

§  170,  Officers.  —  Successor  and  predecessor,  in  rela- 
tion to  offices,  are  considered  to  be  in  privity  with  each 
other,  like  heir  and  ancestor.  A  judgment  for  or  against 
the  incumbent,  concerning  the  rights  and  privileges  of 
his  office,  is  therefore  admissible  as  evidence  for  or  against 
his  successors.^     A  judgment  in  any  controversy  affecting 

^  Wenman  v.  Mackenzie,  5  El.  &  B.  *  Samuel  v.  Dinkins,  12  Rich.   172; 

447.  75  Am.  Dec.  729. 

2  Chant   V.  Reynolds,  49   Cal.  213;  *  Chirac  v.  Reinecker,  2  Pet.  617. 

Bartlett  v.  B.  G.  L.  Co.,  122  Mass.  209.  «  2  Phillipps  on  Evidence,  10. 

2  Valentine  v.  Mahoney,  37  Cal.  389;  '  Bounker  v.  Atkyns,  Skin.  15;  Snell 

Sevey  v.  Chick,  13  Me.  141;  Tyrrell  v.  v.  Campbell,  24  Fed.  Rep.  8S0. 
Baldwin  67  Cal.  1.    See  post,  sec.  185. 


311     OP  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  171 

the  rights  of  any  person  to  hold  an  office  is  conclusive 
upon  the  rights  of  any  other  person  claiming  through  or 
under  him  whose  rights  have  been  adjudicated.'  But 
whenever  the  title  to  an  office  may  be  drawn  in  question 
by  different  persons  acting  in  different  rights,  a  judgment 
against  one  is  not  admissible  against  the  other.  Judg- 
ment in  favor  of  a  defendant,  upon  an  information  in  the 
nature  of  a  quo  warranto,  filed  by  the  prosecuting  attorney 
of  a  county  upon  the  relation  of  an  individual,  is  no  bar 
to  a  subsequent  information  of  a  similar  nature,  filed  by 
the  attorney-general  in  the  exercise  of  a  discretion  given 
him  by  statute.^  There  are  cases  indicating  that  the  rela- 
tion between  an  officer  and  his  deputy  is  such  that  a  judg- 
ment in  favor  of  the  latter  is  conclusive  in  favor  of  the 
former;^  but  this  is  not  necessarily  so.  An  officer,  when 
answerable  for  the  act  of  his  deputy,  may  take  upon  him- 
self the  defense  of  an  action,  and  become  the  real,  or  one 
of  the  real,  parties  thereto.  When  he  does  this,  he  is 
bound  by  the  judgment,  we  apprehend,  because  he  has  in 
fact  had  control  of  the  litigation,  and  an  opportunity  to 
make  his  defense.  But  if  he  has  not  assumed  the  defense 
and  identified  himself  with  the  action,  a  judgment  recov- 
ered therein  against  the  deputy  cannot  conclude  the 
officer.*" 

§171.  Tenants  in  Ejectment.  —  The  action  of  eject- 
ment being  purely  a  possessory  action,  a  number  of 
persons  are  considered  as  in  privity  with  the  defendant 
therein,  to  the  extent  that  they  must  yield  up  the  posses- 
sion  to  a  prevailing  plaintiff,  though  their  title  to  the 
property  in  question  remains  unadjudicated,  and  is  sus- 
ceptible of  being  successfully  asserted  against  the  now 
successful  party  in  some  subsequent  controversy.  When 
considering  the  force  of  a  judgment  in  ejectment,  privies 

1  King     V.     Grimes,     Bull.    N.    P.  '  King  v.  Chase,  15  N.  H.  9;  41  Am. 

231  Dec.  ()75. 

"  ^  State  V.  Cinn.  Gas  Co.,  18  Ohio  St.  *  Morgan  v.  Chester,  4  Conn.  387; 

262.  Goekie  v.  Kiiby,  100  U.  S.  379. 


§  171  a      OF    THE    PERSONS    AFFECTED    BY   JUDGMENT.       312 

"are  those  who  entered  under,  or  acquired  an  interest  in 
the  premises  from  or  through,  or  entered  without,  title  by 
collusion  with  defendants  subsequent  to  the  commen- 
cing of  the  action."  ^  A  landlord  who  receives  possession 
from  his  tenants  pending  the  suit,  and  all  persons  enter- 
ing under  defendants,  or  as  trespassers  pendente  lite,  are 
subject  to  be  dispossessed  under  the  judgment.'^  If  a 
writ  of  restitution  in  such  cases  did  not  authorize  the  re- 
moval of  all  persons  not  in  possession  at  the  institution 
of  the  suit,  a  series  of  transfers  of  occupancy  from  one 
person  to  another  would  forever  preclude  the  plaintiff 
from  obtaining  the  use  of  his  property.  In  the  execution 
of  this  writ,  it  is  to  be  presumed  that  all  the  parties  found 
in  possession  are  there  as  trespassers,  or  as  lessees  or  pur- 
chasers from  the  defendant  pendente  lite?  The  statute  of 
California  provides  that  "an  action  for  the  recovery  of 
real  property  against  a  person  in  possession  cannot  be 
prejudiced  by  any  alienation  made  by  such  person,  either 
before  or  after  the  commencement  of  the  action."  * 

§  171  a.  Co-owners.  —  A  co-owner,  by  whatever  species 
of  co-tenancy  he  may  hold,  is  not  bound  by  a  judgment 
rendered  against  his  companion  in  interest.®  Discussing 
whether  one  of  several  co-heirs  could  be  prejudiced  by 
proceedings  against  the  others,  the  supreme  court  of  the 

1  Satterlee  v.  Bliss,  36  Cal.  489;  Hanson  v.  Armstrong,  22  111.  442; 
Wattson  V.  Dowling,  26  Cal.  124.  Jones  v.  Chiles,  2  Dana,  25;  Howard 
"The  defendant  and  all  the  members  v.  Kennedy,  4  Ala.  592;  39  Am.  Dec. 
of  his  family,  together  with  his  ser-  807;  Smith  v.  Traube's  Heirs,  1  Mo- 
vants, employees,  and  his  tenants  at  Lean,  87;  Wallen  v.  HufF,  3  Sneed,  82; 
will  or  at  sufferance,  may  be  removed  65  Am.  Dec.  49;  Jackson  v.  Tuttle,  9 
from    the    premises    in    executinsf    a  Cow.  233. 

writ  of  possession  ":  Freeman  on  Exe-  ^  Long  v.  Morton,  2  A.  K.   Marsh, 

cations,  sec.  475.     Tlie  wife  of  defend-  39. 

ant  is   presumed   to  be  in  possession  *  Code  Civ.  Proc,  sec.  747. 

under  him,  and  must  generally  be  dis-  *  Stokes    v.    Morrow,    54  Ga.    597; 

possessed  under  a  writ   against  him:  Bass  v.  Sevier,  58  Tex  567.     But  after 

Freeman    on     Executions,    sec.    475;  one  co-tenant  has  suffered  judgment 

Johnson  v.  Fullerton,  44  Pa.  St.  496;  against  himself  in  an  action  for  an  in- 

Fiske  w.  Chamberlain,  103  Mass.  495;  jury  to  a  chattel,  he  and  his  co-tenants 

Huerstal  v.  Muir,  63  Cal.  450;  Gray  u  cannot  maintain  a  joint  action  for  the 

Nunan,  63  Cal.  220;  Saunders  v.  Web-  same  injury:  Brizendine  v.  Frankfort 

ber,  39  Cal.  287.  B.  Co.,  2  B.  Mon.  32;   36  Am.  Dec. 

»  Sampson  v.  Ohleyer,  22  Cal.  200;  587. 


313   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  171  a 

state  of  Georgia  said:  "  Each  of  these  grandchildren  was 
entitled,  in  his  own  right,  to  his  share  of  his  ancestor's 
estate,  and  to  contest  any  conflicting  claim.  They  do  not 
claim  through  one  another.  The  interest  of  each  was 
separate  and  independent.  Therefore  a  judgment  against 
a  part  did  not  prevent  the  rest  from  being  heard."  ^  A 
part  owner  is  so  free  from  having  any  interest  in  the  re- 
sult of  a  litigation  against  his  co-tenant,  that  he  is  not 
disqualified  from  being  a  witness  at  the  trial.'^  A  judg- 
ment in  favor  of  the  defendant,  and  against  one  or  more 
of  the  several  tenants  in  common,  in  an  action  of  eject- 
ment cannot  prejudice  any  of  the  co-tenants  not  parties 
to  that  suit.  A,  B,  and  C,  being  owners  of  the  undivided 
three  fourths  of  the  title  to  a  tract  of  land,  were  sued  in 
an  action  of  trespass  for  excavating  a  part  of  the  land; 
the  title  was  put  in  issue,  and  from  some  cause  judgment 
was  entered  against  them.  Thereafter  D,  the  owner  of 
the  remaining  fourth,  sued  the  plaintiff  in  the  former 
action  for  the  possession  of  the  same  premises,  and  estab- 
lished his  title.  Whereupon  the  defendant  in  the  second 
suit  insisted  that  as  "A,  B,  and  C  were  estopped  from 
maintaining  any  further  action  by  operation  of  the  judg- 
ment against  them,  D  could  not  recover  to  any  greater 
extent  than  if  the  defendant  possessed  the  title  of  A,  B^ 
and  C.  But  the  court  held  that  as  D,"  by  virtue  of  his 
ownership  of  an  undivided  interest,  was,  as  against  a  tres- 
passer, entitled  to  recover  the  whole  tract,  his  rights  in 
that  respect  could  not  be  changed  by  a  proceeding  to  which 
he  was  not  a  party;  that  notwithstanding  the  former 
judgment,  the  title  of  the  defendant  continued  to  be  as  it 
was  prior  thereto,  —  that  of  a  trespasser;  and  finally,  that 
there  was  no  legal  impediment  to  D's  recovering  the  entire 
tract,  as  he  could  have  done  before  the  judgment  against 
his  co-tenants.^     Upon  the  principle  hereinbefore  men- 

1  Walker    v.    Ferryman,     23    Ga.     R.  195;  Hammett  v.  Blount,  1  Swan, 
314.  38.-). 

=*  Bennett  v.  Hethington,  16  Serg.  &        *  Williams  v.  Sutton,  43  Cal.  71. 


§   172       OF    THE    PERSONS    AFFECTED    BY    JUDGMENT.  314 

tidied,  that  estoppels  must  be  mutual,  it  should  follow 
that  as  a  judgment  against  one  co-tenant  cannot  bind  the 
others,  a  judgment  in  his  favor  cannot  be  urged  by  them 
as  an  estoppel.  This  result  has  not  been  uniformly  con- 
ceded. It  has  been  held  that  a  recovery  by  one  co-tenant 
for  a  nuisance  to  the  joint  possession  was  conclusive,  in  a 
subsequent  action  in  favor  of  all  the  co-tenants,  that  the 
wrong  complained  of  existed  and  constituted  a  nuisance 
at  the  commencement  of  the  former  action.^  As  against 
a  trespasser,  each  co-owner  has  a  right  to  the  exclusive 
possession  of  the  common  property,  and  a  judgment  in 
favor  of  one  co-tenant  may,  by  enabling  him  to  recover 
possession  of  the  entire  tract,  operate  to  the  advantage  of 
his  co-tenants,  by  stopping  the  running  of  the  statute  of 
limitations  in  favor  of  an  adverse  holder;  but  the  latter  is 
not  estopped  by  the  recovery  from  contesting  the  title  of 
the  co-tenants  who  were  not  parties  to  the  former  action.^ 

§172.     Remaindermen,  and  Persons   not  in  Esse. — If 

several  remainders  are  limited  by  the  same  deed,  this 
creates  a  privity  between  the  person  in  remainder  and 
all  those  who  may  come  after  him;  and  a  verdict  and 
judgment  for  or  against  the  former  may  be  given  in  evi- 
dence for  or  against  any  of  the  latter.^  Between  a  tenant 
for  life  and  a  reversioner  no  privity  exists,  and  a  judgment 
against  the  former  does  not  bind  the  latter.*  "If  there 
are  ever  so  many  contingent  limitations  of  a  trust,  it  is  an 
established  rule  that  it  is  sufficient  to  bring  the  trustees 
before  the  court,  together  with  him  in  whom  the  first 
remainder  of  inheritance  is  vested;  and  all  that  may  come 
after  will  be  bound  by  the  decree,  though  not  in  esse,  un- 
less there  be  fraud  and  collusion  between  the  trustees  and 

'  Fell  V.  Bennett,  110  Pa.  St.  181.  *  Adams  v.  Butts,  9  Conn.  79;  Allen 

=•  Walker  v.  Read,  59  Tex.  187;  Read  v.  De  Groot,  9   Mo.   159;   14  Am.  St. 

V.  Allen,  56  Tex.  182.  Rep.  626;    Phillipps  on  Evidence,  14, 

'  Rushworth   v,  Pembroke,    Hardr.  15;  Freer  v.  Stolenbur,  2   Abb.  App. 

472;  Doe  v.  Tyler,  6  Bing.  390;  Pyke  189;  Bartlett  v.  B.  G.  L.  Co.,  122  Mass. 

V.  Crouch,  1  Ld.  Raym.  730;  Johnson  209. 

V.  Jacob,  11  Bush,  646. 


315  OF   THE    PERSONS    AFFECTED   BY   JUDGMENT.       §  172 

the  first  person  in  whom  the  remainder  of  inheritance  is 
vested."^  S.  P.  C.  conveyed  lands  to  three  trustees,  to 
hold  in  trust,  —  1.  To  himself  for  life;  2.  Remainder  to 
the  heirs  of  his  b-ody;  3.  Remainder  to  R.  C.  for  life; 
4.  Remainder  to  the  heirs  of  R.  C.'s  body;  5.  Remainder 
in  fee  to  the  children  of  S.  C,  In  an  action  against  the 
trustees,  this  deed  was  set  aside.  S.  P.  C.  and  R.  C.  after- 
ward dying.,  the  children  of  S.  C.  commenced  suit  to 
obtain  their  remainder  in  fee.  But  it  was  held  that  the 
decree  setting  aside  the  deed  was  binding  on  them;  that 
the  contingent  remainders  depended  on  the  legal  fee  and 
the  equitable  estate  in  S.  P.  C.  intermediate,  and  was  liable 
to  be  destroyed  by  anything  which  defeated  those  estates.^ 
According  to  the  views  entertained  and  expressed  by  Lord 
Redesdale,  "it  is  sufficient  to  bring  before  the  court  the 
first  tenant  in  tail  in  being,  and  if  there  be  no  tenant  in 
tail  in  being,  the  first  person  entitled  to  the  inheritance, 
and  if  no  such  person,  then  the  tenant  for  life.  It  has 
been  repeatedly  determined  that  if  there  be  tenant  for 
life,  remainder  to  his  first  son  in  tail,  remainder  over, 
and  he  is  brought  before  the  court  before  he  has  issue, 
the  contingent  remaindermen  are  barred."  *  But  in  Mary- 
land, where  one  sixth  of  certain  property  was  devised  to 
the  testator's  daughter  "  during  her  life,  and  after  her  de- 
cease, to  her  raale  children  on  her  body  lawfully  begotten 
or  to  be  begotten,  a  bill  in  equity  was  filed  against  this 
daughter  and  her  two  sons,  by  other  part  owners  of  the 
land,  alleging  that  a  partition  could  not  be  advantageously 
made,  and  praying  for  a  sale  of  the  land  and  the  distribu- 
tion of  the  proceeds.  A  decree  was  subsequently  entered 
in  accordance  with  this  prayer,  and  was  succeeded  by  the 
sale  of  the  property  thereunder.  After  the  death  of  the 
daughter,  her  five  sons  commenced  an  action  of  ejectment 
to  recover  possession  of  one  sixth  of  the  land.     Three  of 

1  Hopkins  v.  Hopkins,  1   Atk.  590;  ^  Campbell     v.     Watson,     8     Ohio, 

Goeljelu  Iffia,  111  N.  Y.  170;  Clyburn  498. 

V.  Reynolds,  31    S.  C.  91;    Mayer  v.  ^  Giffard  v.  Hort,  1   Schoales  &  L. 

Hover,  81  Ga.  308.  407. 


§  173   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     816 

the  sons  had  been  born  since  the  rendition  of  the  decree 
under  which  the  sale  had  been  made,  and  it  was  con- 
tended that  as  they  were  not  in  esse  they  could  not  be 
bound  by  the  decree.  The  court  held  that  their  interest 
could  not  be  destroyed  by  their  mother  as  life  tenant, 
nor  by  their  living  brothers;  "that  their  rights  under  the 
will  were  indestructible  by  any  act  of  the  parties  having 
interests  prior  to  or  in  common  with  them,"  and  there- 
fore that  they  were  not  prejudiced  by  the  decree  of  sale 
and  the  proceedings  had  in  pursuance  thereof.^  The 
difference  between  the  conclusions  reached  by  the  court 
in  Maryland,  and  those  announced  by  Lord  Redesdale  is 
this:  that  in  Maryland  some  person  must  be  brought 
before  the  court  having  an  estate  of  inheritance,  and  who 
is  on  that  account  entitled  to  represent  both  his  own 
interests  and  the  interests  of  all  who  may  claim  after  his 
death;  while,  according  to  Lord  Redesdale,  if  there  be  no 
person  in  existence  possessing  an  estate  of  inheritance, 
then  the  tenant  for  life  may  be  brought  before  the  court 
and  treated  as  the  representative  of  persons  who  may,  by 
their  subsequent  birth,  acquire  interests  in  the  estate. 
The  views  of  Lord  Redesdale  are  sustained  by  a  majority 
of  the  reported  adjudications  on  this  subject.^ 

§  173.  Trustees  and  Cestuis  que  Trust.  —  In  many  in- 
stances trustees  and  their  cestuis  que  trust  are  regarded  as 
being  so  independent  that  proceedings  against  one  have  no 
effect  upon  the  other,  and  both  are  essential  to  a  complete 
determination  of  any  action  in  reference  to  the  trust  es- 
tate.^  This  rule,  however,  yields  to  convenience  and  neces- 

'  Downin  v.  Sprecher,  35  Md.  478.  »  Collins  v.  Loflftus,  10  Leigh,  5;  34 
2  Faiilker  V.  Davis,  18  Gratt.  684;  98  Am.  Dec.  719;  Spragne  v.  Tyson,  44 
Am.  Dec.  698;  Baylor's  Lessee  w.  Dejar-  Ala.  338;  Caldwell  v.  Taggart,  4  Pet. 
nette,  13Gratt.  152;Gaskell?;.  Gaskell,  190;  White  v.  Haynes,  33  Ind.  540; 
6  Sim.  643;  Miller  v.  Foster,  76  Tex.  Adams  v.  St.  Leger,  1  Ball  &  B.  184; 
479;  Miller  v.T.  &  P.  R'y,  132  U.S.  662;  demons  v.  Elder,  9  Iowa,  273;  Prewitt 
Freeman  V.  Freeman,  9  Heisk.  301;  2  v.  Land,  36  Miss.  494;  Blake  v.  All- 
South.  L.  Rev.  168;  Mead  v.  Mitchell,  man,  5  Jones  Eq.  407;  Reed  v.  Reed, 
17  N.  Y.  210;  72  Am.  Dec.  455;  Cock-  16  N.  J.  Eq.  248;  Martin  v.  Reed,  30 
burn  V.  Thompson,  16  Ves.  32;  Cheese-  Ind.  218. 
man  v.  Thorne,  16  Edw,  Ch.  629. 


817  OF    THE    PERSONS    AFFECTED    BY    JUDGMENT.       §   173 

sity.     Where  it  is  impossible  or  extremely  inconveuient 
to  bring  all  the  cestuis  que  trust  before  the  court,  either  as 
plaintiffs  or  as  defendants,  on  account  of  their  number, 
the  court  will  allow  in  the  case  of  plaintiffs  a  few  of  the 
cestuis  que  trust  to  bring  an  action,  and  in  the  case  of  de- 
fendants, if  the  trustees  are  parties  defendant,  the  pres- 
ence of  the  cestuis  que  trust  may  be  altogether  dispensed 
with.    What  number  of  cestuis  que  trust  will  be  regarded  as 
so  great-as  to  obviate  the  necessity  of  bringing  all  of  them 
into  court  is  undetermined.     In  Harrison  v.  Steivardson, 
2  Hare,  533,  twenty-one  cestuis  que  trust  were  required  to 
be  joined;  but  in  other  cases,  involving  circumstances  of 
unusual  difficulty,  when  the  number  was  but  little  greater, 
a  part  were  authorized  to  represent  all.^     No  doubt  there 
are  many  instances  in  which  a  trustee  is  authorized  to 
represent  his  cestuis  que  trust,  and  in  which  the  judgment 
is  conclusive   on  the  latter,  in  the   absence  of  fraud  or 
collusion.      Thus  where  A  conveyed   certain   mortgaged 
premises  to  B,  in  trust,  for  A's  wife,  and  the  mortgagee 
instituted  suit  against  B  to  foreclose,  who,  answering,  ad- 
mitted the  facts  to  be  as   stated   in   the  complaint,  and 
consented  to  such  decree  as  might  be  right,  it  was  held 
that  B  was  empowered  by  the  nature  of  his  trust  to  repre- 
sent the  interests  of  his  cestuis  que  trust  to  this  extent,  and 
that  in  the  absence  of  any  evidence  of  injury  to  her  or 
her  estate,  she  ought  not  to  be  allowed  to  reverse  nor  to 
impeach  the  decree.'^     When  a  creditor  makes  an  assign- 
ment for  the  benefit  of  his  creditors,  the  assignee  acquires 
the  legal,  and  the  creditors  the  equitable,  estate.    A  judg- 
ment against  the  assignee,  in   relation  to  property  em- 
braced in  the  assignment,  is  conclusive,  unless  it  can  be 
avoided  for  fraud  or  collusion.'    It  has  been  said  that  the 
cestuis  que  trust  of  a  mortgagee  are  not  necessary  parties  to 

1  Perry  on  Trusts,    sees.   873,    885,  Egmont,    4   Sim.   574;    Bainbridge   v. 

and  cases  cited  in  sec.  157  in  this  work.  Burton,    2   Beav.   539;    Richardson  v. 

A  part  of  the  beneficiaries  cannot  rep-  Larpent,  2  Younge  &  C.  507. 

resent  and  bind  the  others  unless  their  '■'  Johnson  v.  Robertson,  31  Md.  476. 

interests  are  homogeneous:  Newton  v.  '  Field  v.  Flanders,  40  111.  -I/O. 


§  173       OF    THE    PERSONS    AFFECTED    BY    JUDGMENT.  318 

a  foreclosure  suit,  whether  such  suit  is  to  enforce  the 
mortgage  or  to  make  it  subordinate  to  some  other  lien, 
and  that  "a  final  decree  settling  the  rights  of  all  parties 
may  be  made  without  bringing  such  cestuis  que  trust  before 
the  court." '  A  common  form  of  security  is  the  convey- 
ance of  property  to  trustees,  to  hold  in  trust  for  the  pur- 
pose of  securing  the  payment  of  bonds,  coupons,  and  other 
evidences  of  indebtedness.  In  such  cases  the  trustees 
represent  the  bond-holders,  and  proceedings  by  or  against 
the  trustees,  conducted  in  good  faith,  bind  the  holders  of 
the  bonds  or  other  indebtedness.^  If  a  judgment  is  re- 
covered in  the  name  of  A,  the  law  will  protect  any  equi- 
table interest  of  another  person  for  whose  benefit  the 
judgment  was  intended,  and  who  was  the  equitable  owner 
of  the  chose  in  action  on  which  it  was  recovered,  though 
the  record  does  not  disclose  that  fact.  A  garnishee  of  the 
nominal  plaintiff  cannot  enforce  payment  of  the  judgment 
to  himself.'  It  is  not  intended  that  the  fact  of  the  legal 
and  equitable  title  being  in  different  persons  shall  author- 
ize the  same  issues  to  be  twice  bona  fide  litigated.  A  suit 
by  A  for  the  use  of  B,  or  as  A's  trustee,  is  binding  on  B, 
No  man  can  be  permitted,  after  adjudicating  a  matter  by 
his  trustee,  to  disregard  that  adjudication.'*  The  equita- 
ble owner  of  a  chose  in  action  is  bound  to  the  same  extent 
as  if  he  were  a  party  to  the  record.^  The  head  of  a  family 
may  be  regarded  as  a  quasi  trustee,  in  whom  the  law  has 
reposed  the  duty  of  representing  and  protecting  both  his 
own  interests  and  the  interests  of  his  family,  and  a  judg- 
ment against  him  may  therefore  bind  them,  in  respect  to 
interests  represented  by  him  in  good  faith.  Hence  if  a 
judgment  in  foreclosure  or  in  ejectment  is  entered  against 

1  N.  J.  F.  Co.  V.  Ames,  12  N.  J.  Eq.  U.  S.  605;  Richter  v.  Jerome,  123  U.  S. 

507;  Van  Vechten  v.  Terry,  2  Johns.  233;  Glide  v.  Dwyer,  S3  Cal.  477. 

Ch.  197;  Johnson  v.  Robertson,  31  Md.  ^  Hodson  v.  McConnel,    12  111.  170. 

476;  Willink  v.  Canal  Co.,  4  N.  J.  Eq.  *  Peterson  v.  Lathrop,  34  Pa.  St.  223; 

377.  Calhoun  v.  Dunning,  4  Dall.  120. 

'^  Beals  V.  Illinois  M.  &  T.  R'y  Co.,  *  Rogers  v.   Haines,   3  Greenl.  362; 

133  U.  S.  290;  Kerrison  v.  Stewart,  93  Curtis  v.  Cisna's  Adm'r,   1  Ohio,  432; 

U.  S.  155;  Shaw  v.  Railroad  Co.,  100  Boynton  v.  Willard,  10  Pick.  166. 


319  OF   THE    PEKSONS    AFFECTED    BY   JUDGMENT.       §  174 

a  husband,  it  is  conclusive  on  the  wife  claiming  title  on 
the  ground  that  the  property  was  the  community  prop- 
erty of  herself  and  her  husband/  and  in  some  of  the  states 
is  conclusive  on  her  and  other  members  of  the  family 
claiming  the  same  lands  as  a  homestead.^ 

Part    III.  — OF    PERSONS    BOUND,    THOUGH    NEITHER    PARTIES 
NOR   PRIVIES. 

§  174.  "  Neither  the  benefit  of  judgments  on  the  one 
side,  nor  the  obligations  on  the  other,  are  limited  exclu- 
sively to  parties  and  their  privies."^  Or  in  other  words, 
there  is  a  numerous  and  important  class  of  persons  who, 
being  neither  parties  upon  the  record  nor  acquirers  of 
interests  from  those  parties  after  the  commencement  of 
the  suit,  are  nevertheless  bound  by  the  judgment.  Prom- 
inent among  these  are  persons  on  whose  behalf  and  under 
whose  direction  the  suit  is  prosecuted  or  defended  in  the 
name  of  some  other  person.'*  As  is  illustrated  by  the  case 
of  trustee  and  cestui  que  trust,  the  real  party  in  interest 
cannot  escape  the  result  of  a  suit  conducted  by  him  in  the 
name  of  another.^  The  fact  that  an  action  is  prosecuted 
in  the  "  names  of  nominal  parties  cannot  divest  the  case 
of  its  real  character,  but  the  issues  made  by  the  real 
parties,  and  the  actual  interests  involved,  must  determine 
what  persons  are  precluded  from  again  agitating  the 
question,  and  who  are  estopped  by  the  previous  decis- 
ion."* Whenever  one  has  an  interest  in  the  prosecution 
or  defense  of  an  action,  and  he,  in  the  advancement  or 
protection  of  such  interest,  openly  takes  substantial  con- 
trol of  such  prosecution  or  defense,  the  judgment,  when 

1  Thompsons.  Jones,  77  Tex.  626.  Wilmington  S.  M.  Co.,   18   111.  App. 

»Barfield  v.  Jefferson,  84  Ga.  609;  17;  Palmer  u.  Hayes,  112  Ind.  289. 

Hightower  v.  Beall,  66  Ga.  102.  *  Elliott  v.  Hayden,  104  Mass.  180; 

^  Valentine    v.    Mahoney,    37    Cal.  Jackson  v.  Griswold,   4    Hdl,   522;  2 

389.  Phillipps  on    Evidence,    10;   Train  v. 

*  Stoddard  v.  Thompson,  31   Iowa,  Gold,  5  Pick.  3S0. 

80;  Conger  v.  Chilcote,  42  Iowa,   18;  *  Tate's  Ex'rs  i;.  Hunter,  3  Strob.  Eq. 

Estelle  V.  Peacock,  48  Mich.  469;  Gill  1.36;  Conger  v.  Chilcote,  42  Iowa,  18; 

V.  U.  S.,  7  Ct.  of  CI.  522;  FoUansbee  Wood  v.  Ensel,  63  Mo.  193;   Cole  v. 

V.  Walker,  74  Pa.  St.  306;  Beunitt  v.  Favorite,  69  111.  457. 


§  174   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     320 

recovered  therein,  is  conclusive  for  and  against  him  to 
the  same  extent  as  if  he  were  the  nominal  as  well  as  the 
real  party  to  the  action.^  If  an  original  insurer  carries 
on  in  good  faith,  and  for  the  protection  of  and  with  the 
consent  or  acquiescence  of  a  reinsurer,  a  contest  respect- 
ing a  loss,  the  latter  is  bound  by  the  judgment.  **  The 
reassured  and  reinsurer  stand  in  the  precise  relation  of 
all  other  parties,  where  there  is  a  liability  over,  and  the 
result  of  one  litigation  binds  or  concludes  both.  There  is 
but  one  matter  in  issue  which  is  alike  common  to  both, 
and  that  is,  whether  a  loss  has  occurred  and  a  debt  has 
accrued  to  the  original  insured.^  One  who  would  not 
otherwise  have  been  bound  by  a  judgment  does  not  make 
himself  a  party  thereto  so  as  to  be  bound  by  it,  merely  by 
prosecuting  a  fruitless  appeal  therefrom.^ 

In  many  cases  parties  may  be  required  to  participate  in 
an  action  or  to  accept  the  judgment  therein  as  conclusive 
of  their  rights.  It  may  be  that  the  decision  will  fix  the 
liability  of  a  party  to  another  person,  as  where  a  receiver 
has  employed  an  attorne}^  and  the  amount  to  be  paid  is 
to  be  fixed  by  an  order  of  the  court.  When  the  order  is 
made,  it  settles  the  amount  of  compensation  to  be  paid  the 
attorney,  and  he  cannot  maintain  an  action  against  the 
receiver  for  an  amount  in  excess  of  that  allowed.*  If  one 
of  the  parties  has  the  right  to  call  upon  a  third  person  to 
indemnify  him  for  losses  resulting  from  an  action,  as 
where  one  is  sued  for  the  possession  of  land  which  an- 
other has  conveyed  to  him  with  covenants  for  title  or 
peaceable  possession,  the  person  who  is  thus  liable  may 
be  notified  of  the  action  and  required  to  defend  it.  Upon 
receiving  such  notice  and  an  opportunity  to  defend  the 
action,  he  becomes  a  party  thereto,  whether  he  elects  to 

1  Linton  v.  Harris,  78  Ga.  265;  Das-  76  N.  Y.  247;  Landis  v.  Hamilton,  77 

kam  V.  UUmau,  74  Wis.  474;  McNamee  Mo.  554. 

V.    Moreland,  '26   Iowa,  96;   Burns   v.  '^  Strong  t;.  Phoenix  Ins.  Co.,  62  Mo. 

Garvin,  118  Ind.  320;  Montgomery  v.  289;  21  Am.  Rep.  417. 

Vickery,  110  Ind.  211;  Foust  v.  Hun-  s  Majors  v.  Cowell,  51  Oal.  478. 

tin^ton,  11.3  Ind.  139;  Marsh  v.  Smith,  *  Walsh  v.  Raymond,  58  Conn.  251; 

73  Iowa,  295;  Verplauck  v.  Van  Buren,  18  Am.  St.  Rep.  264. 


321     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  176 

defend  or  not,  so  that  if  the  party  to  whom  he  is  answer- 
able is  defeated,  and  then  brings  an  action  for  indemnity, 
the  person  so  notified  cannot  deny  that  the  recovery  was 
riglitfuL^  Therefore  if  partners  are  sued,  and  one  of 
them,  being  without  the  state,  is  not  served  with  process, 
the  others  may  notify  him  of  the  pendency  of  the  action, 
and  if  he  refuses  to  participate  in  the  defense  the  judg- 
ment is  conclusive  against  him  in  a  suit  by  the  others  for 
contribution.'^  Where  one  seeks  the  benefit  of  an  estop- 
pel by  judgment  on  the  ground  that  he  was  the  real  party 
in  interest  in  an  action,  he  must  show  that  he  conducted 
the  action  or  defense  openly,  to  the  knowledge  of  the  ad- 
verse party  and  for  the  protection  of  his  own  interests.^ 

§  175.     Evidence  to  Show  Who  were  the  Real  Parties. 

—  For  the  purpose  of  showing  that  parties  not  named  in 
the  record  were  the  real  parties  in  interest,  and  conducted 
the  suit  in  the  name  of  others,  wdio  w^ere  only  nominal 
parties,  parol  evidence  may  always  be  offered,  and  when 
the  showing  is  made,  the  real  parties  are  concluded  by  the 
judgment.* 

§  176.  Parties  Bound  without  Notice.  —  In  many  in- 
stances, the  relation  of  the  nominal  parties  to  the  suit  to 
other  persons  is  such  that  the  latter  are  conclusively 
bound  by  a  judgment  against  the  former,  in  the  absence 
of  fraud  or  collusion,  although  they  are  not  notified  of  the 
pendency  of  the  suit,  and  are  not  called  upon  to  conduct 
its  prosecution  or  defense.  In  respect  to  the  question, 
Who  are  those  parties  whose  interests  are  thus  inseparably 
associated?  the  decisions  are  often  inconsistent;  but  un- 
doubtedly the   general   principle   sanctioned    by    a   vast 

1  Littleton  v.  Ricliardson,  34  N.  H.  «  Smith  v.  Ayrault,  71  Mich.  475. 

177;  G6  Am.  Dec.  759;  State  v.  Coste,  *  Cannon  River  M.  Ass  n  v.  Rogers, 

S6  Mo.  4:^7;  88  Am.  Dec.  148;  Davis  v.  42  Minn.   128;  18  Am.  St.   Rep.  497; 

Smith.  79  Me.  351;  Drennan  v.  Bunn,  Lecroix  v.  Lyons,  33  Fed.  Rep.  437. 

124    111.    175;    7    Am.    St.    Rep.    3.54;  «  Tarletoti  ?..   Jolinson,  25  Ala.   300; 

Pritehard  v.    Farrar,   116    Mass.   243;  60  Am.  Dec.  515;  Shirley  r.  Fearne,  33 

Commercial  Ass.  Co.  v.  Am.  Cent.  Ins.  Mi^^s.  653;  ()9  Am.  Dec.  376;  Palmer  v. 

Co.,  68  Cal.  430.  Hayes,  112  lad.  289. 
Judo.  I.— 21 


§  177       OF    THE    PERSONS    AFFECTED    BY    JUDGMENT.  322' 

preponderance  of  authority  is,  that  every  person  wlio  has 
made  an  unqualified  agreement  to  become  responsible  for 
the  result  of  a  litigation,  or  upon  whom  such  a  responsi- 
bility is  cast  by  operation  of  law  in  the  absence  of  any 
agreement,  is  conclusively  bound  by  the  judgment.  This 
rule  will  become  manifest  from  an  examination  of  the 
adjudged  cases.^  "Wherever  this  identity  of  interest  is 
found  to  exist,  all  alike  are  concluded.  Thus  if  one  cove- 
nants for  the  results  or  consequences  of  a  suit  between 
others,  as  if  he  covenants  that  a  certain  mortgage  as- 
signed by  him  shall  produce  a  specific  sum,  he  thereby 
connects  himself  in  privity  with  the  proceedings,  and 
the  record  of  the  judgment  in  that  suit  will  be  conclusive 
against  him.  In  the  case  at  bar,  the  appellant,  having 
bound  himself  that  defendants  in  the  attachment  suit 
would  cause  the  slaves  levied  upon  and  replevied  to  be 
forthcoming  to  abide  the  order  of  the  court,  has  connected 
himself  in  privity  -with,  the  proceedings,  and  made  the 
judgment  conclusive  against  him."* 

§  177.  Corporation  and  Stockholder.  —  Under  statutes 
imposing  personal  liabilities  upon  the  stockholders  for 
the  debts  of  a  corporation,  great  contrariety  of  opinion 
has  been  exhibited  in  relation  to  the  effect  of  a  judgment 
against  the  latter  as  evidence  of  debt  against  the  former. 
In  the  first  case  decided  upon  this  subject  in  New  York, 
the  court  of  errors,  reversing  the  judgment  of  Chancellor 
Kent,  held  that  the  stockholders  were  chargeable,  on  the 
ground  that  the  trustees,  as  agents  of  the  stockholders, 
had  contracted  the  debt  evidenced  by  the  judgment,  and 
that  the  latter  could  impeach  the  indebtedness  upon  no 
ground,  except  fraud  or  error  in  liquidation;  that  the 
judgment  must  be  regarded  "as  a  solemn  admission  of 
indebtedness;   but  it  is  not  binding  as  res  judicata  upon 

•Therefore   sureties   on   a  bond  on  'Collins   r.    Mitchell,    5    Fla.    371; 

apY»eal  are  concluded    by  a  judgment  Rapelye  ?;.  Prince,  4  Hill,  119;  40  Am. 

ot  affirmance:  Oakley  v.  Van  Noppeu,  Lee.  2lJ7;  Greeul.  Ev.,  sec.  523. 
100  N.  C.  287. 


S23  OF    THE    PERSONS    AFFECTED    BY    JUDGMENT.        §   177 

the  stockholders,  if  it  was  procured  lay  fraud  or  is  founded 
in  error.*  Subsequently,  in  the  same  state,  it  was  said, 
in  reference  to  a  judgment  recovered  upon  a  note,  that 
"as  against  the  company  the  judgment  is  conclusive  evi- 
dence that  the  note  was  valid,  and  although  the  defendant 
was  not  directly  a  party,  yet,  as  a  stockholder,  he  was  not 
altogether  a  stranger  to  the  judgment,"  and  that  the  judg- 
ment constituted  a.  prima  facie  evidence  against  the  stock- 
holder.^ But  the  doctrine  of  these  cases  was  considered 
as  shaken  by  the  opinion  of  Cowen,  J.,  in  Moss  v.  McCul- 
lough,  5  Hill,  131,  and  as  late  as  1860  a  majority  of  the 
court  of  appeals  in  the  same  state  "refused  to  commit 
themselves  to  the  doctrine  that  a  judgment  against  the 
corporation  is  even  prima  facie  evidence  against  a  stock- 
holder," while,  in  the  opinion  of  the  minority,  "a  judg- 
ment against  a  corporate  body  is  one  of  the  highest 
evidences  of  indebtedness  known  to  the  law;  it  is  a  solemn 
admission  by  record  that  the  corporation  owes  the  sum 
claimed  in  the  suit,"  and  that  "a  judgment  by  confession, 
in  the  absence  of  any  pretense  of  fraud  or  collusion,  is 
just  as  conclusive  upon  a  corporation  as  one  rendered 
after  litigation,  and  a  judgment  by  default  is  only  an- 
other mode  of  declaring  by  a  record  estoppel  that  the 
corporate  body  has  no  just  defense,  and  can  say  nothing 
in  bar  of  the  claim  preferred  against  it."'  In  a  suit 
against  a  stockholder,  it  seems  to  be  necessary  to  establish 
the  organization  and  existence  of  the  corporation,  and  a 
judgment  against  the  corporation  is  not  conclusive  evi- 
dence of  those  facts  in  such  suit.*  But  the  existence  and 
organization  being  proved,  there  seems,  at  the  present 
time,  to  be  no  doubt  that  a  judgment  against  a  corpora- 
tion is  conclusive  evidence  of  debt  against  its  stockhold- 

*  Slee  V.  Bloom,  20  Johns.  609.  the  corporation  to  collect  unpaid  sub- 

*  Moss  V.  Oakley,  2  Hill,  205;  Moss  scriptions  of  stock,  the  judL-nient 
V.  McCullough,  7  Barb.  279.  against    the  corporation  is  conclusive 

*  Belmont  v.  Coleman,  21  N.  Y.  96;  evidence  of  the  existence  and  amount 
McMahon  v.  Macy,  51  N.  Y.  155.  of  its  indebtedness  to  the  plaintiff; 
But  if  an  action  is  i»rought  by  a  cred-  Stephens  v.  Fox,  83  N.  Y.  .S13. 

iter  to  be  subrogated  to  the  rights  of         *  Hudson  v.  Carman,  41  Me.  81. 


§  178   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     824 

ers,  to  be  avoided  only  on  proof  of  fraud,  collusion,  or 
mistake,  and  not  upon  original  grounds;'  and,  generally, 
"a  stockholder  is  so  far  an  integral  part  of  the  corpora- 
tion that  in  the  view  of  the  law  he  is  privy  to  the  pro- 
ceedings touching  the  body  of  which  he  is  a  member,"^ 
and  is  therefore  bound  by  a  judgment  against  a  corpora- 
tion requiring  it  to  levy  and  collect  unpaid  assessments 
on  his  stock  therein.^ 

§  178.  County  or  Municipal  Corporation,  and  its  Tax- 
payers and  Citizens.  —  The  position  of  a  county  or  muni- 
cipal corporation  towards  its  citizens  and  tax-payers  is, 
upon  principle,  analogous  to  that  of  a  trustee  towards  his 
cestuis  que  trust,  when  they  are  numerous  and  the  manage- 
ment and  control  of  their  interests  are  by  the  terms  of 
the  trust  committed  to  his  care.  A  judgment  against  a 
county  or  its  legal  representatives  in  a  matter  of  general 
interest  to  all  its  citizens  is  binding  upon  the  latter, 
though  they  are  not  parties  to  the  suit.  A  judgment  for 
a  sum  of  money  against  a  county  imposes  an  obligation 
upon  its  citizens  which  they  are  compelled  to  discharge. 
Every  tax-payer  is  a  real,  though  not  a  nominal,  party  to 
such  judgment.  If,  for  the  purpose  of  providing  for  its 
payment,  the  officers  of  the  county  levy  and  endeavor  to 
collect  a  tax,  none  of  the  citizens  can,  by  instituting  pro- 
ceedings to  prevent  the  levy  or  enforcement  of  the  tax, 
dispute  the  validity  of  the  judgment,  nor  relitigate  any 
of  the  questions  which  were  or  which  could  have  been 
litigated  in  the  original  action  against  the  county.*     If 

»  Conklin   v.    Furman,  8    Abb.  Pr.,  »  Hawkins  v.  Glenn,  131  U.  S.  319; 

N.  S.,  161;   57  Barb.  484,  504;  Miller  Hamilton  v.  Glenn,  85  Va.  901;  How- 

V.  White,  8  Abb.  Pr.,  N.  S.,  46;  Milli-  ard  v.  Glenn,  85  Ga.  238;  21  Am.   St. 

ken  V.  Whitehouse,  49  Me.  527;  Bank  Rep.  156;  Glenn  v.  Leggett,  135  U.  S. 

of  Australasia  v.  Nias,  4  Eng.  L.  &  Eq.  533.     If,  however,  a  corporation   has 

252;    Came   v.  Brigham,   39   Me.    35;  gone  into   liquidation,  a  judgment  in 

Gaskill  ».  Dudley,  6  Met.  546;  39  Am.  an    action    subsequently   commenced 

Dec.  750;   Wilson    v.    Pittsburgh    etc.  against  it  is  not    conclusive  upon  its 

Co.,  43  Pa.  St.  424;  Johnson  i;.  Somer-  stockholders:    Schrader    v.    Mauufac- 

ville  D.  Co.,  15    Gray,  216;    Hawes  v.  turers'  Nat.  Bank,  133  U.  S.  67. 

Anglo-Saxon    P.    Co.,    101    Mass.  216;  *  Clark  v.    Wolf,    29  Iowa,    197;  63 

Donworth  v.  Coolhaugh,  5  Iowa,  300.  Am.  Dec.  627;  Stite  v.  Rainey.  74  Mo. 

2  Hawkins    v.    Glean,     131     U.     S.  229;  Harmon  v.  Auditor,  123  111.  122; 

329.  5  Am,  St.  Key.  502. 


325     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  178 

in  an  action  against  the  officers  of  a  county  a  tax  is  deter- 
mined to  be  valid,  a  tax-payer  of  the  county  cannot  after- 
wards maintain  suit  to  enjoin  the  collection  of  such  tax.^ 
An  action  having  been  brought  by  certain  tax-payers  of 
a  town  to  enjoin  the  issue  of  bonds,  a  judgment  against 
them  was  held  to  be  conclusive  upon  all  other  tax-payers.^ 
A  judgment  against  county  commissioners,  directing  that 
a  writ  of  mandate  issue  requiring  them  to  assemble  and 
call  an  election  on  the  question  of  a  change  of  the  county 
site,  is  conclusive  on  all  citizens  of  the  county,  because 
the  commissioners  are  representatives  of  the  county  in 
the  matter  of  their  duties  under  the  statute;  and  though 
they  failed  to  avail  themselves  of  any  legal  defense  to  the 
writ,  the  people  of  the  county  are  concluded  by  the  judg- 
ment,^ 

The  great  majority  of  the  decisions  relating  to  the 
privity  between  a  municipality  and  its  tax-payers  and 
citizens  have  resulted  from  attempts  to  resist  the  enforce- 
ment of  bonds  issued  or  taxes  levied  by  it,  after  judgment 
had  been  rendered  to  which  it  was  a  party,  in  favor  of 
such  bonds  or  taxes;  but  no  reason  is  perceived  why  the 
same  principle  does  not  apply  to  other  litigated  questions. 
Thus  a  municipality  may  claim  that  certain  real  estate 
has  been  dedicated  to  public  uses,  —  for  instance,  that  it  is 
a  public  square  or  street,  —  and  as. a  representative  of  its 
citizens  and  tax-payers  may  litigate  that  question  with 
one  who  claims  that  it  is  j)rivate  property,  and  not  sub- 
ject to  anj  public  use  whatsoever.  The  question  when 
once  litigated  and  decided  in  an  action  to  which  the 
municipality  is  a  proper  party  should  be  regarded  as  for- 
ever set  at  rest,  unless  some  additional  title  should  be  ac- 
quired by  one  of  the  litigants  after  the  commencement  of 
the  action.  Either  this  must  be  true,  or  each  citizen,  and 
perhaps  each  citizen  of  each  generation  of  citizens,  must 

'  Lvman  v.  Faris,  53  Iowa,  49S.  »  Sauls  v.  Freeman,  24  Fla.   209;   12 

2  Har.non  ?;.   An<litor,    1-23  111.    122;     Am.  St.  Rep.  190. 
5  Am.  St.  Rep.  502. 


§  178       OF   THE    PERSONS    AFFECTED    BY    JUDGMENT.  326 

be  at  liberty  to  commence  an  action  and  litigate  the  ques- 
tion for  himself,  either  in  his  own  name  or  in  that  of  the 
municipality,  or  of  the  people  of  the  state,  or  in  some 
other  mode  adapted  to  the  litigation  of  the  question.  A 
case  determined  by  the  court  of  appeals  of  Virginia  is 
sometimes  cited  as  in  opposition  to  the  views  we  have 
expressed,^  but  an  examination  of  that  case  will  show 
that  it  did  not  present  the  question  here  under  consider- 
ation. In  the  first  place,  the  preceding  action  had  been 
ejectment  against  the  city  to  recover  possession  of  the 
property,  and  the  court  was  of  the  opinion  that  the  ex- 
istence of  the  easement  claimed  by  the  city  could  not 
have  cons'.ituted  any  defense  to  that  action,  and  there- 
fore that  the  recovery  by  the  plaintiff  did  not  tend  to 
negative  the  existence  of  the  easement  claimed  by  the 
city.  In  the  second  place,  whatever  was  said  upon  the 
subject  was  a  dictum,  because  the  court,  in  the  case  before 
it,  proceeded  no  further  than  to  inquire  whether  the  plain- 
tiff had  been  acting  in  good  faith  in  the  claim  made  by 
him  to  the  lands  included  in  his  former  action,  and  which 
the  city  claimed  to  be  a  public  street.  That  the  question 
of  the  right  to  the  easement  was  not  considered  to  be  in- 
volved in  the  first  action  is  manifest  from  the  following 
language  of  the  court:  "  It  is  to  be  regretted  that  in  a 
matter  where  the  public  convenience  is  so  much  involved 
that  the  right  to  the  easement  itself  had  not  been  pre- 
sented either  by  an  action  of  trespass  against  the  city 
authorities  for  removing  the  obstruction,  or  some  pro- 
ceeding to  abate  the  alleged  nuisance,  so  that  the. right 
might  have  been  settled  by  a  court  of  record  having  com- 
petent authority." 

Where,  however,  the  action  is  such  as  to  put  in  issue 
the  right  of  a  city  in  property  claimed  by  it  as  a  public 
street  or  square,  as  where  the  action  is  brought  against  it 
to  determine  conflicting  claims  of  title,  there  appears  to 
be  no  doubt  tliat  a  judginent  against  it  is  conclusive,  in 

•Warwick  v.  Mayo,  15  Gratt.  528. 


327     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  178 

all  subsequent  actions  to  wliicli  it  is  a  party,  that  the  prop- 
erty claimed  by  it  is  not  such  public  street  or  square.* 
In  Louisiana,  where  a  claimant  brought  an  action  against 
a  municipality  to  determine  whether  land  had  been  dedi- 
cated to  public  use,  and  recovered  a  judgment,  it  was  held 
that  this  judgment  was  conclusive  in  a  later  litigation, 
wherein  another  citizen  sought  to  maintain  the  existence 
of  the  dedication,  contrary  to  the  former  decision,  the 
court  saying:  "The  municipal  authorities  represent  not 
only  the  corporators  but  the  public."^ 

After  a  judgment  has  been  entered  against  a  munici- 
pality, determining  adversely  to  it  a  claim  made  by  it 
as  the  representative  of  its  citizens,  a  similar  claim  may 
be  made  by  a  proceeding  instituted  in  the  name  of  the 
state  as  the  representative  of  the  general  public,  and 
then  the  question  arises  whether  the  identity  of  the 
parties  is  such  that  the  judgment,  when  the  public  was 
represented  by  the  municipality,  is  a  bar  to  an  action 
in  which  the  public  is  represented  by  the  state.  It  is 
clear  that  the  issues  in  the  two  controversies  may  be 
the  same;  it  Is  equally  clear  that  the  nominal  parties 
in  the  two  suits  are  different,  and  that  in  neither  suit 
was  the  nominal  the  real  party  in  interest.  In  both, 
the  real  party  is  the  public,  in  whose  behalf  the  dedica- 
tion of  the  property  is  claimed,  and  as  the  real  parties  are 
the  same,  the  judgment  in  the  first  action  should  be  con- 
clusive in  the  second.^  In  South  Carolina,  suit  was  brought 
by  certain  tax-payers  against  the  commissioners  of  the 
county  to  obtain  an  injunction  to  prevent  their  issuing 
bonds,  and  resulted  in  a  decree  denying  the  injunction 
and  affirming  the  right  to  issue  the  bonds,  and  they  were 
thereupon  issued  and  sold  to  bona  fide  purchasers.  There- 
after an  action  was  brought  in  the  name  of  the  state  upon 
the  relation  of  citizens  and  tax-payers  of  the  same  county 

^  San  Francisco  v.  Hollaflay,  76  Cal.         '  Xiques  v.  Bnjac,  7  La.  Ann.  515. 
18;  City  and  County  of  Sau  Fraucisco         *  People  v.  iloliaday,  tjup.  Ct.  Cal., 
V.  Itsell,  79  Cal.  57.  Feb.  It>y2. 


§  178   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.    328 

to  have  the  same  bonds  declared  null  and  void  and  issued 
without  authority  of  law.  The  judgment  in  the  suit  was 
held  to  be  a  bar  to  the  second  action,  because  the  state  had 
no  substantial  interest  in  the  action  in  which  its  name 
was  used,  and  the  two  actions  were  for  the  benefit  of  the 
same  class  of  persons,  and  that  "it  is  not  reasonable  to 
suppose  that  the  state,  in  lending  its  name  to  individuals 
for  the  protection  of  their  rights,  intended  to  subvert  the 
principles  governing  controversies  of  the  class  to  which 
this  belongs."  ^  On  the  other  hand,  in  Kansas,  where  an 
elector  of  the  county,  in  a  proceeding  commenced  by  him, 
procured  a  writ  of  mandamus  to  issue  compelling  the 
county  clerk  to  remove  his  office  to  a  town  claimed  to  be 
the  county  seat,  it  was  held  that  this  was  not  conclusive 
against  a  proceeding  in  mandamus  subsequently  instituted 
by  the  attorney-general  in  the  name  of  state,  "to  compel 
obedience  to  the  law  of  the  state,  commanding  coiinty 
officers  to  keep  their  offices  at  the  county  seat."  Dispos- 
ing of  this  question,  the  court  said:  "This  plea  of  res 
adjudicata  is  fairly  in  the  case,  and  must  be  determined. 
A  majority  of  the  court  hold  that  the  judgment  and  pro- 
ceedings in  the  Hammond  case  do  not  conclude  the  rela- 
tor in  this  case,  and  that  the  judgment  as  pleaded  and 
set  forth  is  no  bar  to  this  action;  that  while  there  may 
be  some  identity  of  cause  of  action,  the  state  can  interfere 
in  matters  of  this  kind,  in  the  interest  of  peace  and  good 
order,  and  to  command  obedience  to  its  laws,  and  that 
for  this  purpose  it  cannot  be  concluded  by  suits  brought 
by  private  persons  to  protect  or  enforce  private  rights. 
In  the  case  of  Garner  v.  State,  upon  the  Relation  of  Moon, 
28  Kan.  790,  it  was  said:  'While  the  statute  permits  any 
elector  who  considers  himself  aggrieved  by  the  result  of 
any  election  held  for  removing,  establishing,  or  relocating 
the  county  seat  of  a  county  to  contest  by  an  action  in  the 
district  court  such  election,  yet  if  different  actions  are 
brought,  and  different  judgments  are  rendered,  it  is  possible 

» State  V.  Chester  and  Lenoir  R.  R.  Co.,  13  S.  C.  290. 


329  OF    THE    PERSONS    AFFECTED    BY    JUDGMENT.       §   179 

that  the  attorney-general  or  county  attorney,  in  the  interest 
of  the  public,  might,  in  a  proper  action  instituted  for  that 
purpose,  have  all  these  different  judgments  reviewed  and 
superseded  by  a  general  adjudication  as  to  which  town, 
city,  or  place  is  the  legal  county  seat  of  a  county,  and  thus 
bring  all  the  county  officers,  with  their  books,  papers,  and 
records,  to  such  town,  city,  or  place,  as  the  county  seat.'"' 
Though  its  officer  is  a  nominal  party  to  a  suit  and  the 
municipality  is  not  joined  with  him,  a  judgment  is  con- 
clusive for  or  against  it  if  it  was  the  real  party  in  inter- 
est, and,  as  such,  prosecuted  and  defended  the  action.^ 
It  is  only  to  the  extent  that  a  county  or  municipal  corpo- 
ration represents  persons  that  a  judgment  against  it  is 
binding  upon  them.  It  does  not  represent  its  citizens 
and  tax-payers  in  respect  to  their  private  property,  but  only 
in  matters  of  general  interest,  and  therefore  a  judgment 
against  or  in  favor  of  a  municipality,  concerning  a  single 
lot  or  other  matter  in  which  one  of  its  citizens  has  a  pri- 
vate interest,  cannot  bind  him.^  So  though  a  county  or 
city  represents  its  citizens  and  tax-payers  respecting  mat- 
ters of  general  interest,  it  is  not  the  representative  of 
other  citizens  of  the  state  interested  in  the  same  general 
question.  Hence  a  judgment  against  it  cannot  conclude 
other  counties  or  municipalities  in  a  subsequent  action, 
though  the  issues  involved  are  the  same.* 

§  179.  Master  and  Servant.  —  A  suit  was  commenced 
against  a  master  for  a  trespass  committed  by  his  servant, 
under  his  order  and  direction.  After  a  trial  upon  the 
merits,  ending  in  a  judgment  for  the  defendant,  it  was 
held  that  the  plaintiff  was  thereby  precluded  from  main- 
taining an  action  against  the  servant  for  the  same  tres- 
pass.®    Where  a  servant  was  sued  for  trespass  in  taking 

»  state  r.  Stock,  38  Kan.  154.  *  Emery  v.  Fowler,  39  Me.  32G;  Gli 

"Millikanjj.Li Fayette,  118111(1.323;  Am.    Dec.   627;  Kitchens.   Caiiiphell, 

Faust  V.  liaumfjartner,  113  Iiid.  139.  3  Wei.  304;  Kiniiersley  v.  Orpe,  Doug. 

*  Rork  ?'.  Smith,  .55  Wis.  67.  517;   Alexander   v.    Taylor,  4   Denio, 

*  St.  Paul  &  S.  C.  R.  K.  Co.  v.  Rob-  302. 
insou,  41  Miun.  394. 


§   180       OF    THE    PERSONS    AFFECTED    BY    JUDGMENT.  330 

property,  and  the  master  defended  the  suit,  and  justified 
his  servant  in  tlie  taking,  it  was  decided  that  the  judg- 
ment was  conclusive  on  the  master,  because  it  was  his 
duty  to  indemnify  the  servant  in  acting  as  his  agent,  and 
that  he  was  bound  to  appear  and  defend,  and  that  a  judg- 
ment in  his  servant's  favor  was  conclusive  as  a  defense  to 
an  action  by  the  same  plaintiff  against  the  master  for  the 
same  trespass.* 

§  180.  Principal  and  Surety.  —  The  law  in  relation  to 
the  effect  of  a  judgment  against  a  principal,  for  the  pur- 
pose of  charging  the  surety,  is  differently  understood  and 
applied  in  the  different  states.  And  in  the  same  state 
distinctions  are  made  between  different  classes  of  sureties. 
It  seems  to  be  generally  conceded,  however,  that  wherever 
a  surety  has  contracted  in  reference  to  the  conduct  of 
one  of  the  parties  in  some  suit  or  proceeding  in  the  courts, 
he  is  concluded  by  the  judgment.^  Thus  a  judgment 
against  a  defendant  is  conclusive  upon  his  bail,  if  free 
from  fraud  or  collusion;  and  they  cannot  show  that  it  is 
for  too  great  a  sum,  nor  that  it  was  obtained  on  account 
of  the  default  or  negligence  of  the  principal.*  The  sure- 
ties upon  an  injunction  bond  "  assume  such  a  connection 
with  that  suit  that  they  are  concluded  by  a  judgment  in 
it  in  a  suit  at  law  upon  the  bond,  so  far  as  the  same 
issues  are  involved.*  The  same  rule  applies  against 
sureties  who  have  become  parties  to  a  bond  for  the  rede- 
livery of  property  replevied,  or  to  dissolve  an  attachment, 
or  to  release  attached  property.  Upon  the  entry  of  a 
judgment  in  plaintiff's  favor,  their  liability  is  absolute.^ 

1  Castle  V.  Noyes,  14  N.  Y.  329.  Cal.  295;  Way  v.  Lewis,  115  Mass.  26; 

2  Harvey  v.  Head,  68  Gd.  247;  Rid-  Keane  v.  Fisher,  10  La.  Ann.  261; 
d\ev.  Baker.  13  Cal.  295;  Rapelye  v.  Binsse  i^.Wood,  .37  N.  Y.  526.  See  also 
Prince,  4  Hill,  121;  40  Am.  Dec.  267;  Stoops  v.  Wittier,  1  Mo.  App.  420. 
Binsset;.  Wood,  37  N.  Y.  526;  Bently  *  Towle  v.  Towle,  46  N.  H.  432; 
V.  Dorcas,  11  Ohio  St.  .398;  Braiden  v.  Church  v.  Barker,  18  N.  Y.  463. 
Mercer,  44  Ohio  St.  339;  Murdock  v.  »  Jaynes  v.  Piatt,  47  Ohio  St.  262; 
Brooks,  38  Cal.  601;  Jones  v.  Dolls,  3  Boyd  v.  Huffaker,  40  Kan.  634;  Cutter 
La.  Ann.  588;  Tracy  v.  Maloney,  105  v.  Evans,  115  Mass.  27;  Tappaa  v. 
Mass.  90;  Pasewalk  v.  BoUman,  45  N.  Goodsell,  122  Mass.  176;  Collins  v. 
W.  Rep.  780  (Neb.).  Mitchell.  5  Fla.  364;  Craig  v.  Herring, 

^  Parkhnrst  v.  Sumner,  23  Vt.  538;     80  Ga.  709;  Thomson  v.  JossIib,  12  S.  C. 
66  Am.  Dea  94;  Riddle  v.  Baker,  13     580. 


331     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  ISO 

Sureties  upon  the  bond  of  an  executor  or  an  adminis- 
trator also  occupy  a  position  in  which  their  responsibil- 
ity may  be  fixed  in  suits  to  which  they  are  not  parties, 
and  in  which  they  are  not  tendered  an  opportunity  to  de- 
fend, or  by  the  orders  of  the  court  by  which  they  were 
appointed  settling  their  accounts  and  determining  the 
extent  of  their  liability/  "  If  a  judgment  has  been  recov- 
ered against  an  administrator,  and  an  action  thereon  be 
commenced  against  the  surety  on  his  bond  to  the  ordi- 
nary, such  judgment  is  conclusive,  unless  the  surety  can 
show  that  it  was  obtained  through  fraud  or  collusion 
between  the  creditor  and  the  administrator."^  The  only 
questions  open  to  the  sureties  in  a  suit  on  such  a  bond, 
after  judgment  against  their  principal,  are  in  reference  to 
the  making  of  the  bond  and  its  legal  sufficiency.^  "  When 
judgment  has  been  recovered  in  a  court  of  competent 
jurisdiction  against  an  administrator,  showing  that  he 
has  received  funds  belonging  to  an  estate,  and  has  failed 
to  pay  over  the  same,  a  breach  of  his  administration  bond 
is  established.  By  this  judgment  the  administrator  is 
bound,  and  the  sureties  are  concluded  to  the  same  extent 
which  their  principal  is  concluded."* 

But  as  to  administrators  and  executors,  the  rule  that 
their  sureties  are  concluded  by  settlements  of  their  ac- 
counts or  by  judgments  against  them  fixing  their  liabil- 
ity  is  not  in  force  in  many  of  the  states.  In  these  states 
the  effect  of  such  settlements  is,  as  against  the  sureties, 
unless  they  were  parties  to  or  participants  in  the  prior 
action  or  proceeding,  prima  facie  only.'     In  all  the  states 

*  Slagle   V.    Entrekin,    44   Ohio   St.  «  ggy^   ^     Calrlwell,    4    Rich.    117; 

637;  Casoni  v.  Jerome,  58  K  Y.   315;  State  v.   Coste,   36  Mo.  437;   88  Am' 

Ralston  w.  Wood,  15  111.  159;  58  Am.  Dec.  148. 

Dec.   604;  White  v.  Weatherbee,    126  *  Watts  v.  Gayle,  20  Ala.  817;  Wil- 

Mass.  450;  State  v.  Holt,  27  Mo.   340;  ley  v.  Paulk,  6  Conn.  74. 

72  Am.  Dec.  273;  Irwin  v.  Backus,  2-5  *  Stovall    v.    Banks,    10   Wall.   .583; 

Cal.  214;  85  Am.  Dec.  125;  MeCallaw.  Jones  v.  Ritter's  Adin'r,  56  Ala.  270. 

Patterson,  18  B.  Mon.  201;  Martin  v.  *  Lipscomb  ?,'.  Postell,   38  Miss.  476- 

Tally,  72  Ala.  23;  Housh  v.  People,  66  77  Am.   Dec.   651;   Seat  v.   Cannon,    1 

111.  178;   Heard?;.  Lodge,  20  Pick.  53;  lfumj)h.   471;  Binnett  v.  Graiiain, '7I 

32  Am.   Dec.    197;  Thurlough  v.  Ken-  (ia.  211;  Norton  v.   Wallace,    1   Rich, 

dall,  62  Me.  166.  507;  Hobsou  v.  Yancey,  2  Gratt.  73. 


§  180       OF    THE    PERSONS    AFFECTED    BY    JUDGMENT.  332 

sureties  may  avoid  a  judgment  against  their  principal  by- 
showing  that  it  was  procured,  by  fraud  and  collusion.' 
The  sureties  of  guardians  occupy  a  position  analogous  to 
that  of  the  sureties  of  administrators;  and  there  is  the 
same  diversity  of  judicial  opinion  respecting  the  effect 
upon  them  of  a  decree  settling  the  accounts  or  a  judgment 
determining  the  liability  of  their  principal,  the  majority 
of  the  cases  holding  them  bound  by  such  settlements  and 
judgments,  in  the  absence  of  fraud  or  collusion.^  In  the 
case  of  administrators,  executors,  and  guardians,  the 
duties  imposed  on  them  by  law  generally  include  their 
accounting  to  the  court  having  jurisdiction  of  the  estates 
committed  to  their  care,  and  there  obtaining  a  settlement 
of  their  accounts.  The  rendering  true  accounts  and  hav- 
ing them  settled  is  a  part  of  the  duties  for  the  perform- 
ance of  which  the  sureties  have  become  bound,  and  there 
is  therefore  more  reason  to  hold  them  bound  by  judicial 
determinations  of  the  liability  of  their  principals  than 
there  is  any  other  class  of  sureties,  excepting  only  those 
who  have  expressly  made  themselves  answerable  for  the 
payment  of  judgments,  or  for  other  results  of  litigation. 
When  we  come  to  consider  sureties  on  other  OiSicial  bonds, 
we  shall  still  find  a  diversity  of  opinion;  but  the  cases 
holding  judgments  against  a  principal  not  to  be  conclu- 
sive against  his  sureties  are  relatively  more  numerous,' 
though  probably  still  in  the  minority.* 

1  Annett  v.    Terry,  35   N.  Y.  256;  Crawford  v.  Wood,  7  Ga.  445;  Graves 

Dawes  V.  Shed,  15  Mass.  6;  8  Am.  Dec.  v.  Bulkley,  25  Kan.  249;  37  Am.  Rep. 

80;  Robinson  i>.  Hodge,  117  Mass.  222;  249;    Fay  v.   Edn.istou,  25  Kan.   4H9; 

Irwin  V.  Backus,  25  Cal.  214;  85  Am.  Mullen  v.  Scott,  9  La.  Ann.  173;  State 

Dec.  125.  V.  Carson,  1 1  S.  C.  392;  Cox  v.  Thomas, 

^  Brodrib   v.  Brodrib,  56   Cal.   563;  9  Gratt.  323;  Aikins  v.  Baily,  9  Yerg. 

Hailey  v.  Bovd,  64  Ala.  399;  Common-  111. 

wealth    V.    Rhoads,    37    Pa.    St.    60;  ^  That  judgmentis  conclusive  against 

Siiepard  v.  Pelihles,  38  Wis.  373;  Mc-"  sureties:    Evans  v.  Commonwealth,   8 

Cleary  v.  Menke,  109  111.  294;  Braiden  Watts,  39S;  34  Am.  Dec.  477;  Dane  v. 

V.   Mercer,  44   Ohio  St.   339;   McWil-  Gilmore,  51  Me.  544;  Tute  v.  James, 

liams     V.     Kalback,     55     Iowa,     110.  50  Vt.  rJ4;  Dennie  ?'.  Smith,  129  Mass. 

Contra,  State  v.   Hull,   53    Miss.    626;  143;  McM  cken  v.  Commonwealth,  58 

Moore  V.  Alexander,  96  N.  C.  34.  Pa.  St.  213;  Masser  v.   Strickland,    17 

^  That  judgment  against  a  sheriff  or  Serg.    &    R.    354;    17    Am.    Dec.   668. 

constable     is     prima    facie     evidence  The  following,  while  they  declare  the 

against  his  sureties,  but  not  conclusive:  judgment  to  he  prima  J'acie  only,  ap- 


333     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  180 

The  rule  is  sometimes  made  to  depend  on  the  question 
whether  the  bond  is  joint  or  several  in  its  nature.  Thus 
it  is  said  that  a  judgment  obtained  against  a  constable 
for  wrongful  attachment  is,  in  the  absence  of  a  fraud  or 
collusion,  conclusive  evidence  in  an  action  against  him 
and  his  sureties,  both  as  to  damages  and  to  costs,  if  his 
bond  is  joint,  because  the  principal  is  liable  and  his 
bondsmen  must  be  jointly  liable  with  him/ 

A  bond  was  given  by  a  deputy  sheriff  to  his  principal, 
conditioned  that  the  deputy  should  "well  and  faithfully, 
in  all  things,  perform  and  execute  the  duties  of  deputy 
sheriff  without  fraud,  deceit,  or  oppression."  The  sheriff, 
being  sued  for  an  act  of  the  deputy,  gave  notice  to  the 
latter,  but  not  to  his  sureties.  Judgment  being  rendered 
against  the  sheriff,  he  offered  it  as  evidence  in  an  action 
by  him  against  the  sureties,  whereupon  it  was  decided 
that  "  the  terms  of  the  condition  of  this  bond  do  not  bring 
it  within  the  class  of  cases  in  which  an  indemnitor  is  con- 
cluded by  the  result  of  a  suit  against  the  person  whom  he 
has  undertaken  to  indemnify,  upon  the  ground  that  such 
is  the  fair  interpretation  of  the  terms  of  the  contract. 
This  condition  is  only  that  he  will  do  his  duty  as  deputy 
sheriff.  In  the  class  of  cases  alluded  to,  the  contract  of 
indemnity  is  held  to  stipulate  for  the  result  of  a  litigation 
to  which  the  indemnitor  is  not  a  party,  and  to  make  his 
liability  to  depend  merely  upon  that  result.  There  is 
therefore  no  reason  why  this  case,  in  which  the  language 
of  the  condition  admits  of  no  similar  construction,  should 
be  taken  out  of  the  general  rule  which  declares  the  effect 
of  judgments  as  to  strangers,  that  they  conclusively  prove 
rem  ipsam,  and  nothing  else."^     In  a  subsequent  case  ia 

parently  limit  the  defense  of  the  sure-  69  Am.  Dec.  619;  reversing  and  over- 
ties  to  fraud  and  collusion:  Charles  v.  ruling  the  opinion  in  the  same  case  re- 
Hoskins,  14  Iowa,  471;  83  Am.  Dec.  ported  in  18  Barbour,  9.  The  same  case 
378;  People?;.  Mersereau,  74  Mich,  was  again  decided  on  appeal  in  .35  New 
687;  Lowell  v.  Parker,  10  Met.  301);  43  York,  120.  "Although  there  is  a  con- 
Am.  Dec.  436;  State  v.  Colerick,  3  fiicb  of  authority  on  the  subject,  it 
Ohio,  487.  seems  to  be  the  better  opinion  tliat, 
'  Tracy  V.  Goodwin,  5  Allen,  409.  except  in  cas(>s»wlicre,  upon  the  fair 
'Thomas  v.  HubbcU,  15  N.  Y.  405;  conatructiou  of  the  contract,  the  surety 


§  180   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     384 

the  same  state,  a  deputy  had  given  a  joint  bond,  with 
sureties,  to  the  effect  that  the  obligors  "  should  well  and 
sufficiently  indemnify  and  keep  harmless  'the  principal* 
from  and  of  all  manner  of  costs,  charges,  damages,  and 
expenses  which  he  might  incur  or  be  put  to  by  reason  of 
any  act  or  acts,  omission  or  omissions,  of  the  deputy  in  or 
about  the  execution  of  his  office  of  deputy  sheriff,"  In 
an  action  against  the  sheriff,  he  notified  the  deputy,  who 
appeared  and  managed  the  defense.  No  notice  was  given 
the  sureties.  The  sureties  sought  to  avoid  the  effect  of 
ilte  judgment  as  evidence  against  them.  But  the  condi- 
tion of  this  bond  was  considered  as  materially  different 
from  that  in  the  case  of  Thomas  v.  Huhhell,  and  great 
stress  was  laid  upon  the  fact  that  the  bond  was  joint. 

"  The  defendants  being  jointly  bound  to  indemnify  the 
plaintiff,  they  were  in  privity  of  contract  with  each  other, 
and  are  to  be  regarded  and  treated,  quoad  the  contract, 
and  the  rights  and  liabilities  connected  with  and  grow- 
ing out  of  it,  as  one  person.  In  such  a  case,  notice  to 
one  is  notice  to  all,  on  the  same  principle  as  where  two  or 
more  persons  are  shown  to  be  jointly  bound  by  a  contract, 
the  acts  and  admissions  of  either  are  binding  upon  all  the 
others  to  the  same  extent  as  upon  the  one  doing  the  acts 
or  making  the  admissions.  It  was  no  part  of  plaintiff's 
agreement  with  the  sureties  on  the  bond  that  they  should 
have  notice  of  suits  brought  against  him  for  the  miscon- 
duct of  his  deputy,  and  their  liability  as  indemnitors  was 
not  made  to  depend  on  such  notice.  The  law  indeed 
required  notice  to  the  deputy,  in  order  that  he  might 
defend  and  discharge  himself  from  the  misconduct  im- 
puted to  him,  and  for  the  purpose  of  rendering  the  judg- 
ment   against   the  sheriff  conclusive,  if   one  should   be 

may  be  held  to  have  iinrlertaken  to  be  surety,  of  the  fact  of  its  recovery  only, 

responsible  for  the  result  of  a  suit,  or  aud  not  of  any  fact  which  it  was  ne- 

when  he  is  made  privy  to  the  suit  by  cessary  to  find  in  order  to  recover  such 

notice,     and    the    opportunity    being  judgmpnt":  Brandt  on  Suretysliip,  sec. 

given    him  to  defend  it,   a   judgment  524;  De  Grieflf  u  Wilson,  30  1^.  J.  Eq. 

against   the   principal   alone    is,  as   a  435. 
general    rule,    evidence    against    the 


S35     OF  THE  PEKSONS  AFFECTED  BY  JUDGMENT.   §  180 

obtained.  The  notice  was  properly  given  to  the  deputy, 
whose  conduct  only  was  called  in  question,  and  who  is 
presumed  to  know  the  facts  and  circumstances  far  better 
than  the  sureties  or  the  sheriff.  If,  in  addition  to  giving 
notice  to  the  deputy,  notice  had  been  given  to  the  sureties 
also,  it  would  have  been  little  more  than  an  idle  and  use- 
less ceremon}',  as  it  is  to  be  presumed  that  all  they  would 
or  could  have  done  would  have  been  to  refer  the  matter 
to  their  principal,  the  deputy,  and  cast  the  burden  of  the 
defense,  as  the  sheriff  has  done.  By  a  fair  and  reasonable 
interpretation  of  the  conditions  of  the  bond,  the  parties 
contemplated  that  actions  might  be  brought  against  the 
sheriff  for  the  acts  or  omission  of  his  deputy,  and  the 
covenant  of  indemnity  iu  the  condition  was  inserted  to 
provide  for  such  contingencies."* 

In  respect  to  sureties  upon  bonds  and  contracts  other 
than  those  already  noticed,  the  contrariety  of  opinion 
concerning  the  effect  upon  them  of  a  judgment  against 
their  principal  is  very  marked  and  irreconcilable.  The 
most  extreme  ground  taken  against  such  a  judgment  w'as 
that  assumed  in  a  couple  of  cases  in  New  York,  where  it 
was  held  that  a  surety,  though  notified  of  a  suit  against 
his  principal,  and  though  assisting  in  conducting  it,  was 
not  bound  by  the  judgment,  unless  admitted  to  defend  in 
the  name  of  the  principal,  because  he  could  not  have 
appeared  nor  have  managed  the  suit,  except  by  the  con- 
sent of  his  principal,  nor  could  he  take  an  appeal.^  In  a 
number  of  cases  a  judgment  or  decree  against  the  princi- 
pal was  considered  as  constituting  not  even  prima  facie 
evidence  against  the  surety.'  These  cases  are,  however, 
opposed  by  more  numerous  cases,  which  unite  in  declar- 
ing i\\Q  prima  facie  effect  of  such  a  judgment  as  evidence 

^  Fay  r.  Ames,  44  Barb.  .^27.     See  '  Lartiprue  v.  Baldwin,  5  Mart.  (La.) 

also  Westervelt  u  Smith,  2  Duer.  449:  193;    Beall  v.  Beck.  3   Har.  &    McH. 

Chamberlain    v.  Godfrey,  36  Vt.  380;  242;    McKellar    v.  Bowell,  4    Hawks, 

84  Am.  Dec.  690.  34;  Morris  v.  I-ucas,  8  Blackf.  9;  King 

'  Jackson  v.  Griswold,  4  Hill,  522;  v.  Norman,  4  Com.  B.  884. 
Dougks  V.  Howiaud,  24  Weud.  35. 


§  181   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     336 

against  a  surety,'  but  differ  somewhat  as  to  the  means  by 
which  this  prima  facie  evidence  may  be  rebutted.  In 
Georgia,  the  surety  "may  rebut  this  evidence;  and  he 
may  not  only  look  into  the  judgment  or  decree  against 
his  principal,  but  he  may  inquire  into  its  justness,  ah 
origine.  He  may  set  up  and  prove  any  defense  he  could 
have  proved  in  the  original  suit,  if  he  had  been  a  party 
to  it."^  In  Ohio,  the  surety  may  impeach  the  judgment 
for  collusion  or  for  mistake.  But  until  so  impeached  it 
is  sufficient  to  entitle  plaintiff  to  recover  the  amount  for 
which  it  was  rendered.*  In  one  of  the  circuit  courts  of 
the  United  States,  the  rule  is  laid  down  that  the  surety 
may  show  fraud  or  collusion,  or  that  the  debt  has  been 
paid,  or  that  there  was  a  clerical  mistake  in  entering 
judgment/  A  bond  was  given  to  the  state  to  the  effect 
that  the  principal  w^ould  not  keep  a  disorderly  house.  In 
an  action  against  the  surety  upon  the  bond,  it  was  held 
that  the  conviction  of  the  principal,  in  a  criminal  prose- 
cution for  keeping  a  disorderly  house,  was  prima  facie 
evidence  against  the  surety.^ 

A  judgment  against  a  surety,  obtained  without  fraud  or 
collusion,  in  an  action  of  which  the  principal  or  any  co- 
surety had  notice,  is  conclusive  in  favor  of  the  surety  in 
an  action  against  the  principal  or  the  co-surety  for  con- 
tribution.® If  a  judgment  rendered  against  a  principal 
and  a  surety  upon  their  bond  is  paid  by  the  latter,  the 
former  cannot,  in  a  suit  to  recover  from  him  the  amount 
thus  paid,  show  want  of  consideration  in  the  bond." 

§  181.  Notice  to  Indemnitors.  —  In  many  cases  it  hap- 
pens that  if,  by  reason  of  the  finding  of  certain  facts,  one 

'  Munfordv.  Overseers,  2  Rand.  313;  Stalworth.  37   Ala.    402;    Spencer  v. 
Jacobs  V.  Hill,  2  Leigh,  393;  Baker  v.  Dearth,  43  Vt.  98. 
Preston,  1  Gilmer,  235;  Respiiblica  v.  '^  Bryant  v.  Owen,  1  Ga.  355;  Brad- 
Davis,  3  Yeates,  128;  2  Am.  Dec.  366;  well  v.  Spencer,    6  Ga.  578. 
Lucas  V.  Curry,  2  Bail.  403;  Brandt  oa  ^  state  v.  Colerick,  3  Ohio,  487. 
Suretyship,    sec.    525;     Macready     v.  *  Berger    v.    Williams,    4    McLeaa 
Schenck,  41  La.  Aim.  4"6;   Haddock  577. 

V.  Perham,  70  Ga.  572;  Curry  v.  Mack,  »  \Yehhs  v.  State,  4  Cold.  199. 

90   111.   C06;    Fletcher   v.   Jackson,  23  «  Love  v.  Gibson,  2  Fla.  51IS. 

Vt.  581;   56  Am.  Dec.  98;   Preslar  v.  '  Pitts  v.  Fugate,  41  Mo.  405. 


337  OF    THE    PERSONS    AFFECTED    BY   JUDGMENT.       §  181 

of  the  parties  to  the  suit  is  in  any  respect  damaged,  he, 
in  turn,  has  the  right  to  recover  back  the  amount  of  dam- 
ages from  some  other  person,  not  a  party  to  the  present 
litigation.  The  person  thus  exposed  to  a  loss  which  some 
one  has,  in  effect,  covenanted  against,  may  make  his  cove- 
nantor a  party  to  the  present  suit,  and  may  thus  avoid 
the  peril  and  inconvenience  of  being  required  to  estab- 
lish against  his  covenantor,  in  a  subsequent  controversy, 
the  facts  which  may  be  established  by  the  plaintiff  in  the 
present  suit.^  In  order  to  become  thus  bound,  the  cove- 
nantor must  be  tendered  "a  full,  fair,  and  previous  oppor- 
tunity to  meet  the  controversy,"  and  it  is  not  sufficient 
that  he  happened  to  be  present  in  court,  and  may  have 
cross-examined  the  witnesses.^  It  seems,  upon  the  prin- 
ciple that  no  one  shall  be  condemn ed  or  made  answer- 
able without  an  opportunity  to  defend,  that  in  order  to 
bind  one  by  a  judgment  to  which  he  is  not  a  party,  he 
should  be  allowed  all  the  means  of  defense  open  to  him 
had  he  been  made  a  party;  and  that  a  nominal  party 
wishing  to  bind  by  a  judgment  one  not  a  party  to  the  ac- 
tion must  not  only  notify  him  of  its  pendency,  but  give 
him  to  understand  that  he  is  desired  to  defend  it,  and 
will  be  allowed  such  control  as  may  be  essential  to  his 
defense.'  In  Michigan,  one  who  wishes  to  bind  a  warrantor 
of  the  title  to  real  estate  by  a  judgment  must  give  him 
written  notice;*  but  elsewhere  oral  notices,  if  not  other- 
wise objectionable,  are  sufficient.^  No  particular  form  of 
words  is  required.  The  party  must  certainly  have  notice 
of  the  pendency  of  the  action,  and  this  notice  must  be 
given  at  such  a  time  as  will  permit  of  his  having  a  fair 
opportunity  of  making  a  defense."     It  is  not  certain  that 

'  Konitzky  v.  Meyer,  49  N.  Y.  471;  mingst>.  Harrison,  57  Miss.  275;Daven- 

Tofld  V.  Chicago,  18  111.  App.  565.  port  v.  Miiir,  3  J.  J.   Marsh.   310;  20 

2  Turpin  v.   Thomas,  2  Hen.  &  M.  Am.  Dec.  143. 

139;  3  Am.  Dec.  615.  « Williams    v.    Burg,    9    Lea,    455; 

*  Eaton  V.  Lyman.  26  Wis.  61;  Save-  Somersi;.  Schmidt,  24  Wis.  421;  1  Am. 
land  V.  Green,  36  Wis.  612;  Ax  ford  u.  Rep.  191;  Hersey  v.  Long,  30  Minn. 
Graham,  57  Mich.  422.  114;  Boyd  v.  Whitfield,   19  Aric.  447; 

*  Mason  v.  Kellogg,  38  Mich.  132.         Davis  v.  Wilbourne,  1  Hill  (S.  C.)  27; 
<>  Ferrea    v.    Chabot,    G3    Cal.    564;     26  Am.  Dec.  154. 

Miner  v.  Clark,   15  Wend.  425;  Cum- 
JUDG.  L  — 22 


§  181   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     838 

he  must  be  requested  to  assume  the  defense,  some  of  the 
decisions  declaring  this  not  to  be  essential.^  In  general, 
the  fact  that  the  covenantor  appeared  and  conducted  or 
participated  in  the  defense  is  of  itself  sufficient  proof  that 
he  had  due  notice  of  the  action,  and  a  full  and  fair  oppor- 
tunity to  contest  it  on  the  merits.*  But  in  the  absence  of 
such  appearance,  the  question  arises  whether  he  was  given 
such  notice  of  the  suit  as  made  him  responsible  for  its 
termination.  The  necessity  of  proof  of  such  a  notice  can- 
not be  avoided  by  showing  that  the  warrantor  sought  to 
be  bound,  was  a  witness,*  or  knew  and  talked  of  the  ac- 
tion, said  he  had  an  agreement  which  would  defeat  it,  and 
was  informed  of  the  time  and  place  of  the  trial.*  "If  a 
party  to  a  suit  has  the  right  to  resort  to  another  upon  his 
failure  in  the  action,  whether  upon  covenants  of  warranty 
or  on  the  ground  that  he  is  indemnified  by  such  third 
j>arty,  then  it  is  clearly  his  duty  to  give  full  notice  to  his 
covenantor  or  indemnitor  of  the  pendency  of  the  suit 
what  it  is  he  requires  him  to  do  in  the  suit,  and  the  con- 
sequences which  may  follow  if  he  neglects  to  defend. 
Mere  knowledge  of  the  existence  of  such  action  is  entirely 
insufficient  to  bind  the  party  by  the  judgment.  Unless  he 
is  notified  to  furnish  testimony,  or  to  defend  the  action 
or  to  aid  in  it,  he  may  well  suppose  the  party  to  be  in 
need  of  no,  assistance,  and  he  may  well  rely  upon  that 
supposition;  for  if  the  party  desires  his  aid,  it  is  his  duty 
to  give  him  a  full  notice  a  reasonable  time  before  the 
trial  of  the  action,  to  enable  him  to  prepare  for  it.^  In 
an  action  against  a  town  or  city  for  a  defect  in  one  of  its 
highways,  caused  by  A,  the  judgment  against  the  city,  if 
A  be  notified  of  the  suit,  is  conclusive  in  a  subsequent 
suit  against  him  by  the  city,  in  relation  to  the  existence 
of  the  defect,  the  amount  of  injury  to  the  individual,  and 

^  Cnmmingg  v.   Harrison,   57  Miss.  '  Lebanon  v.  Mead,  64  N.  H.  8, 

275;  Heiser  v.  Hatch,  86  N.  Y.  614.  *  Paul   v.   Witman,   3  Watts   &   S. 

2  Harding  v.    Larkin,    41    111.    413;  409. 

Mackey  v.  Fisher,  36  Minn.  347;  Davis  ^  Sampson  v.  Ohleyer,   22  Cal.  200; 

V.  Smith,  79  Me.  351.  Peabody  v.  Phelps,  9  Cal.  213. 


339  OF    THE    PERSONS    AFFECTED    BY   JUDGMENT.       §  181 

the  fact  of  the  exercise  of  due  cautiou  by  the  party  in- 
jured.^ Some  recent  decisions  in  courts  of  very  high 
authority,  enforcing  the  rights  of  a  city  to  recover  back 
from  a  property  holder  a  sum  which  it  has  been  com- 
pelled to  pay,  on  account  of  his  act  or  negligence,  for 
personal  injuries  occasioned  by  a  defect  in  its  highways, 
either  establish  an  exception  to  the  usual  rule  in  regard 
to  notices  to  defend,  or  else  dispense  with  several  essen- 
tials of  such  notices,  as  the  law  was  formerly  understood. 
In  Massachusetts,  it  is  suflBcient  to  bind  the  property 
holder  by  the  judgment  against  the  city,  if  he  had  notice 
of  the  pendency  of  the  suit,  and  of  the  fact  that  the  city 
intended  to  hold  him  responsible,  and  had  an  opportunity 
to  furnish  evidence,  though  he  did  not  take  upon  himself 
the  defense  of  the  suit,  and  was  not  requested  to  do  so.^ 
Cases  in  the  supreme  court  of  the  United  States  go  much 
further  in  the  same  direction.  In  the  first  of  these  cases 
it  is  maintained  that  a  property  owner  who  knows  of  a 
suit  pending  against  the  city  for  damages  in  front  of  his 
lot  is,  in  an  action  against  him  by  the  city,  bound  by 
the  judgment  against  the  city;  and  upon  such  judgment 
being  produced,  can  only  show  in  his  defense  that  the 
damages  were  caused  or  contributed  to  by  the  city  her- 
self. It  is  not  necessary  that  any  notice  be  served  in- 
forming him  that  the  city  will  hold  him  responsible.^  In 
a  later  case  involving  similar  issues,  the  court  said:  "Ex- 
press notice  is  not  required;  nor  was  it  necessary  for  the 
ofiicers  of  the  corporation  to  have  notified  him  that  they 
would  look  to  him  for  indemnity.  The  conclusive  effect 
of  a  judgment  respecting  the  same  cause  of  action,  and 
between  the  same  parties,  rests  upon  the  just  and  expe- 

•  Littleton  v.  Richardson,  34  N.  H.  Ga.  774;  City  of  Portland  v.  Richard- 

179;  66  Am.  Dec.  759;  Veazie  v.  Rail-  son,  54  Me.  46;  89  Am.  Dee.  729. 

road,  49  Me.  119;  Melford  V.  Holbrook,  ^  Bostop  v.  Worthington,    10  Gray, 

9  Allen,  17;  85  Am.  Dec.  735;  Village  496;  Inhabitants  v.  Holbrook,  9  Allen, 

of  Port  Jervis  v.  First  Nat.  Bank,  96  17. 

N.  Y.  550;  District  of  Columbia  v.  Bait.  » City  of  Chicago  v.  Robbins,  2  Black- 

&  P.  R.  R.  Co.,  1  Mackey,  314;  Western  418. 
and  Atlantic  R.  R.  Co.  v.  Atlanta,  74 


§  184       OP    THE    PERSONS    AFFECTED    BY    JUDGMENT.  340 

dient  axiom  that  it  is  for  the  interest  of  the  community 
that  a  limit  should  be  opposed  to  the  continuance  of  liti- 
gation ;  that  the  same  cause  of  action  should  not  be  brought 
twice  to  a  final  determination.  Parties  include  all  who 
are  directly  interested  in  the  subject-matter,  and  who  have 
the  right  to  make  defense,  control  the  proceedings,  exam- 
ine and  cross-examine  witnesses,  and  to  appeal  from  the 
judgment.  Persons  not  having  those  rights,  substan- 
tially, are  regarded  as  strangers  to  the  cause;  but  all  who 
are  directly  interested  in  the  suit  and  have  knowledge  of 
its  pendency,  and  who  refuse  or  neglect  to  aj)pear  and 
avail  themselves  of  these  rights,  are  equally  concluded  by 
the  proceedings."  ^ 

§  182.  Attachment  Proceedings.  —  If  property  is  at- 
tached, and  the  defendants  in  the  attachment  or  the 
general  assignees  put  in  their  claim  to  the  property,  and 
are  heard  in  full  in  reference  to  such  claim,  they  become 
parties  to  the  proceeding,  and  bound  by  the  judgment.^ 
Any  creditor  who  defends  an  attachment  on  the  ground 
that  the  debt  attached  is  due  to  him  is  precluded,  if  he 
fails  in  his  defense,  from  contesting  the  validity  of  the 
attachment  as  against  the  plaintiff  or  as  against  the 
garnishee.^ 

§  183.  Bailee  or  Bailor.  —  If  in  an  action  against  the 
bailee  for  the  property  the  bailor  employed  counsel  and 
managed  the  case,  and  put  his  title  in  issue  as  a  defense 
for  the  bailee,  the  judgment  is  conclusive  on  all  the  title 
of  the  bailor  at  the  time  of  its  rendition.* 

§  184.  Officers  and  their  Indemnitors.  —  A  party  who 
indemnifies  an  attaching  officer,  and  who,  when  suit  is 
brought,  appears  and  has  complete  control  of  its  defense, 
is  bound  by  the  judgment  as  an  estoppel  in  a  subsequent 

^  Robbias  v.  City  of  Chicago,  4  Wall.  Richardson  v.    Watson,    23    Mo.    34; 

658.  Tarleton  v.  Johnson,  25  Ala.  300;  60 

^  Moore  v.  Spackman,  12  Serg.  &  R.  Am.  Dec.  515. 

287.  *  Tarleton  v.  Johnson,  25  Ala.  300; 

'Coatea  v.  Roberts,  4  Rawle,  104;  60  Am.  Dec.  515. 


341     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  185 

litigation,  to  the  same  extent  as  if  he  were  a  party  to  the 
record.^  He  is  equally  bound  where,  though  not  partici- 
pating in  the  conduct  of  the  suit,  he  was  given  due  notice 
of  the  action,  and  was  tendered  an  opportunity  to  assist 
in  its  defense,^  If  no  notice  of  the  suit  is  given,  and  no 
opportunity  is  allowed  him  to  make  a  defense,  a  judg- 
ment is  but  prima  facie  evidence  against  an  indemnitor.' 
"  Covenants  to  indemnify  against  the  consequences  of  a 
suit  are  of  two  classes:  1.  Where  the  covenantor  ex- 
pressly makes  his  liability  depend  on  the  event  of  a  liti- 
gation to  wdiich  he  is  not  a  party,  and  stipulates  to  abide 
the  result;  and  2.  Where  the  covenant  is  one  of  general 
indemnity  merely,  against  claims  or  suits.  In  cases  of  the 
first  class,  the  judgment  is  conclusive  evidence  against  the 
indemnitor,  although  he  was  not  a  party  and  had  no 
notice;  for  its  recovery  is  the  event  against  which  he 
covenanted.^  In  those  of  the  second  class,  the  judgment 
is  prima  facie  evidence  only  against  the  indemnitor,  and 
he  may  be  let  in  to  show  that  the  principal  had  a  good 
defense  to  the  claim.^  In  each  of  the  classes  of  cases 
above  mentioned,  the  indemnitor  is,  of  course,  understood 
as  saving  the  right,  which  the  law  gives  in  every  case 
where  the  suit  is  between  third  persons,  of  contesting  the 
proceeding  on  tl;e  ground  of  collusion,  for  the  purpose  of 
charging  him,"®  and  also  of  showing  that  the  judgment 
resulted  from  illegal  or  unauthorized  acts  of  the  olficer 
subsequent  to  the  writ  under  which  the  indemnity  was 
given,  or  of  his  misconduct  in  the  service  of  other  writs.^ 

§  185.     Tenant  and  Landlord.  —  When  a  judgment  has 
been  entered  against  a  tenant  for  the  possession  of  lands 

'  Murray   v.  Lovejoy,  2   Cliff.   191;  v.  Prince,  4   Hill,   119;   40  Am.   Dec. 

Lovejoy  V.  Murray,  3  Wall.  1.  267;    Aberdeen   v.    Blackniar,   6    Hill, 

2  Miller  r.  Rhoades,  20  Ohio  St.  494.  324;  Taylor  v.  Barnes,   69  N.  Y.   430; 

'Stewart   v.    Thomas,    45   Mo.    44;  Coinstock z;.  Drohan,  15  N.  Y.  Sup.  Ot. 

Robinson  v.  Baskins,  53  Ark.  330.  373. 

*  Patton  V.  Caldwell,  1  Dall.  419.  «  Brid-^Qport  Ins.  Co.  v.  Wilson,  34 

"  Duffield  V.  Scott,  3  Term  Rep.  374;  N.  Y.  L'SO. 
Smith   V.  Compton,   3  Barn.  &  Adol.         '  Boyuton  v.  Morrill,  111  Mass.  4. 
407;  Lee  v.  Clark,  1  Hill,  66;  Rapelye 


§  185      OF    THE    PERSONS    AFFECTED    BY    JUDGMENT.  342 

held  by  bim,  it  may  be  offered  in  evidence  against  bis 
landlord,  eitber  in  a  controversy  between  bim  and  tbe 
tenant,  or  between  the  landlord  and  tbe  plaintiff  in  tbe 
former  action,  or  his  successor  in  interest.  If  tbe  landlord 
did  not  participate  in  tbe  defense,  and  was  not  notified  of 
tbe  pendency  of  tbe  previous  action,  tbe  judgment  therein 
is  not  admissible  against  bim  for  any  purpose,  except  to 
show  tbe  fact  of  its  recovery  and  that  the  defendant 
therein  has  ceased  to  hold  as  his  tenant.^  If  in  an 
action  between  tbe  landlord  and  bis  tenant  the  latter 
relies  upon  a  judgment  rendered  against  himself  for  the 
possession  of  property,  he  must  show  that  his  landlord 
had  notice  of  tbe  action  and  a  fair  opportunity  to  defend 
it,  otherwise  the  tenant's  attornment  to  the  plaintiff  in 
such  judgment  cannot  be  justified;^  while,  on  the  other 
hand,  if  a  tenant  has  notified  his  landlord  of  the  action, 
and  given  bim  an  opportunity  to  defend  it,  the  latter 
cannot,  in  opposition  to  the  judgment  against  tbe  tenant, 
insist  that  his  eviction  was  not  by  title  paramount.^  If 
the  landlord  actually  takes  upon  himself  tbe  defense  of  an 
action  brought  against  bis  tenant,  and  conducts  the  litiga- 
tion to  the  end,  he  would  seem,  upon  principle,  to  be 
bound  by  tbe  final  result.  We  have  not,  however,  discov- 
ered any  decision  necessarily  affirming  that  even  under 
such  circumstances  the  landlord  is  bound  by  the  judg- 
ment against  bis  tenant;  and  perhaps  it  is  fairly  infer- 
able from  the  decisions  upon  the  subject  that  it  is  only 
when  tbe  landlord  is  formally  made  a  party  defendant 
that  he  becomes  a  party,  as  between  himself  and  the  plain- 
tiff, so  as  to  be  estopped  by  a  judgment  in  favor  of  the 
latter.* 

»  Cbant  V.  Reynolds,  49   Cal.   213;  168;  Chambers  v.  Lapsley,  7  Pa.   St. 

Striddle  v.  Saroni,  21  Wis.  175;  Bradt  24. 

V.    Church,   110   N.  Y.  537;    Read   v.  *  Ryerss  v.  Ripley,  25  Wend.  432; 

Allen,  58  Tex.  380;  Oets;en  v.  Ross,  47  Samiiel  v.  Dinkins,   12  Rich.   172;  75 

111.   142;  95  Am.   Dec.  468;  Powers  v.  Am.  Dec.  729;  Bolls  w.  Smith,  5  Sneed, 

Schoeltens,  79  Mich.  299.  105;  Stout  v.  Tall,  71  Tex.  438;  Orth- 

2  Douglas  V.  Fulda,  45  Cal.  592.  wein  v.  Thomas,  127  111.  554;  11  Am, 

^  Wheelock  v.  Warschauer,   34  Cal.  St.  Rep.  159;  Smith  v.  Gayle,  58  Ala. 

265;   McCreery   v.  Everdiug,  54  Cal.  600;  Kent  v.  Lasley,  48  Wis.  257. 


343     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  186 

§  186.  Vendee  and  Vendor.  —  A  vendee  is  in  privity 
with  his  vendor,  and  bound  by  judgments  against  him 
and  entitled  to  the  benefits  of  judgments  in  his  favor 
rendered  previously  to  the  sale  of  the  property.'  But  a 
vendee  is  not  in  privitji^  with  his  vendor  as  to  proceedings 
instituted  after  the  transfer,^  though  such  transfer  was 
not  recorded.^  So  where  a  transfer  is  involuntary,  as 
where  it  is  made  by  virtue  of  an  execution,  judicial,  or 
trustee's  sale,  it  takes  effect  by  relation  as  of  the  date  of 
the  lien  or  trust  deed  under  which  the  sale  was  made,  and 
cannot  be  affected  by  any  judgment  against  the  latter  in 
an  action  commenced  after  such  date.*  A  purchaser,  or 
any  subsequent  vendee,  upon  being  sued  for  the  property, 
in  trover  or  replevin,  or  in  any  action  involving  the  title, 
may  give  notice  of  the  pendency  and  nature  of  the  suit, 
to  the  original  vendor,  and  require  him  to  defend  or  to 
assist  in  defending  the  same,  and  after  such  notice  the 
vendor,  whether  he  defends  or  not,  cannot  question  the 
finding  of  title  involved  in  the  judgment.^  But  the  judg- 
ment is  conclusive  against  the  vendor,  though  not  noti- 
fied of  the  suit,  if  he  appears  as  a  witness  and  testifies 
that  he  had  no  title  at  the  date  of  his  sale.^  In  all  other 
cases,  no  judgment  whereby  a  third  party  has  recovered 
property  from  a  vendee  can  be  given  in  evidence  to 
show  want  of  title  in  the  vendor,  unless  he  was  notified  of 
the  suit.^  If  a  sheriff  levies  upon  property  and  is  sued  by 
a  claimant  thereof,  and  in  such  suit  the  claimant  is  de- 
feated, such  judgment  is  conclusive  against  the  claimant 
in  a  controversy  between  him  and  a  person  who  derives 

title  to  the  property  through  a  sale  made  under  such  levy.* 

* 

^  Derr W.Wilson,  84  Ky.  14;  Strayer  3  Am.  Dec.  222;  Jennings  v.  Sheldon, 

V.  Johnson,  110  Pa.  St.  21;  Rio  Grande  44  Mich.  92. 

etc.  E..  R.  Co.  V.  Ortiz,  75   Tex.  602;  "  Barney  v.  Dewey,  13  Johns.  224;  8 

Peterson  v.  Weissbein,  80  Cal.  38.  Am.  Dec.  372. 

'^  Chase  v.  Kaynor,  78  Iowa,  449.  '  Stephens  v.  Jack,  3  Yerg.  403;  24 

'  Vose  V.  Morton,  4   Cu.sh.  27;    50  Am.  Dec.  513;  Jacobs.  Pierce.  2 Rawle, 

Am.  Dec.  750.  204;  Axford  v.  Graham,  57  Mich.  422; 

*  Cooper  V.  Corbin,  105  111.  224.  Salle  v.  Light's  Ex'rs,  4  Ala.  700;  39 

*  Thurston  r.  Spratt,  52  Me.  202;  Am.  Dec.  317;  Buchanan  w.  Kauffiiian, 
Gist  V.  Davis,  2  Hill  Eq.  335;  29  Am.  65  Tex.  235;  Fallon  v.  Murray,  16  Mo. 
Dec.  89;  Bunder  v.  Frombc^rg,  4  Dnll.  168. 

436;   Hamilton  v.  Cutts,  4  Mass.  349;        «  Prentiss  v.  Holbrook,  2  Mich.  372, 


§  187      OF   THE    PERSONS    AFFECTED    BY    JUDGMENT.  344 

In  South  Carolina,  after  a  very  elaborate  consideration  of 
the  question,  it  was  determined  that  the  right  of  a  vendee 
to  give  notice  to  his  vendor,  and  thus  conclude  him  by 
the  judgment,  was  limited  to  questions  of  title,  and  could 
not  be  extended  to  a  case  in  which  the  quality  of  goods 
sold,  and  not  the  title  thereto,  was  the  question  at  issue/ 

§  187.  Warrantee  and  Warrantor. — As  the  sale  of  per- 
sonal property  always  involves  a  warranty  of  title,  the 
rules  and  proceedings  there  applicable  in  fixing  the  lia- 
bility of  the  vendor  to  his  vendee,  upon  recovery  of  the 
property  by  some  claimant,  are  also  applicable  to  a  vendor 
of  real  estate  with  a  covenant  of  warranty  of  title,  when 
he  is  sought  to  be  made  liable  to  his  vendee,  claiming  to 
have  been  evicted  under  title  paramount.  Any  judgment 
by  which  the  warrantee  is  dispossessed,  or  his  title  ad- 
judged invalid,  if  after  proper  notice  to  his  warrantor, 
"is  plenary  evidence  against  the  warrantor  in  a  suit  on 
the  warranty,"^  whether  rendered  in  an  action  commenced 
against  the  covenantee,  or  by  him  commenced  against 
another,^  except  that  the  warrantor  may  show  that  the 
prevailing  party  claimed  title  under  the  covenantee,  or 
recovered  on  account  of  something  occurring  after  the 
date  of  the  covenant.^  A  warrantor  sought  to  escape 
from  the  result  of  a  judgment  on  the  ground  that  the 
warrantee  had  been  called  as  a  witness  by  plaintiff  at  the 
trial.  The  court  said:  "There  are  authorities  to  the  point 
that  the  record  of  a  verdict  and  judgment  cannot  be  used 

»  Smith   V.  Moore,  7    S.  C.  209;   24  474;    Marsh  v.  Smith,  73  Iowa,  295; 

Am.  Rep.  47.  Carpenter  t;.  Pier,  30  Vt.  81;    73  Am. 

2  Hamiiton  v.  Cutts,  4  Mass.  349;  3  Dec.  23S;  Lord  v.  Cannon,  75  Ga.  300; 

Am.  Dec.  2-22;  Knapp  v.  Marlboro,  34  Williamson  w.  Williamson,  71  Me.  442; 

Vt.  235;    Chamberlain   v.    Preble,    11  Belden  v.  Seymour,  8  Conn.  304;   21 

Allen,  370;   Littleton  v.    Richanlson,  Am.  Dec.  661. 

34  N.  H.  187;  66  Am.  Dec.  759;  Allen  *  Brown  v.  Taylor,  16  Vt.  631;   37 

V    Rountree,    1   Speers.  80;   Brewster  Am.  Dec.  618;  Andrews  v.  Denuison, 

V.  Countryman,  12  Wend.  446;  Smith  16    N.    H.    469;     43    Am.    Dec.    565. 

V.  Moore,  7    S.  C.  209;    24  Am.  Rep.  Contra,  Ferrell  v.  Alder,   8   Humph. 

479;  Ivesw.  Niles,  5  Watts,  323;  Park  44. 

V.  Bates,  12  "Vt.  381;  36  Am.  Dec.  347;  *  Davenport  v.  Muir,  3  J.  J.  Marsh. 

Booker   v.  Bell,  3   Bibb,   173;    6   Am.  310;   20  Am.  Dec.   143;   Chicago   etc. 

Dec.  641;  Daskam  v.  UUman,  74  Wis.  R'y  Co.  v.  Northern  P.  L.,  70  111.  217. 


345  OF   THE    PERSONS    AFFECTED    BY   JUDGMENT.       §  188 

in  favor  of  one  who,  by  his  evidence,  has  contributed  to 
their  recovery.  But  this  court  is  of  opinion  that  this 
exception  to  the  general  rule  defining  the  parties  by  whom 
evidence  may  be  used  would  introduce  an  inconvenient 
collateral  inquiry,  and  that  no  practical  evil  will  result 
from  maintaining  the  general  rule  unimpaired,  and  that  it 
is  important  that  the  rules  of  evidence  should  be  broad  and 
well  defined.^  If  a  person  guarantees  anything,  whether 
real  or  personal,  to  be  of  a  specified  quality  or  character, 
he  may  be  brought  in  privity  with  an  action,  to  which  his 
guarantee  is  a  party,  involving  the  character  or  quality 
of  the  thing  guaranteed.  Thus  a  party  selling  a  note, 
guaranteeing  it  to  be  valid,  may  be  required  to  prosecute 
an  action,  in  which  a  defense  has  been  tendered,  involv- 
ing the  validity  of  the  note.  If  he  neglects  to  do  so,  and 
the  defense  is  successfully  made,  he  may  not,  in  a  suit 
between  himself  and  his  vendee,  show  that  the  note  was 
valid.^  If  the  warrantor  did  not  participate  in  the  de- 
fense of  the  action  and  had  no  notice  of  its  pendency, 
there  are  cases  which  imply  that  the  judgment  is  never- 
theless prima  facie  evidence  against  him,  and  imposes  on 
him  the  burden  of  establishing  his  title.^  The  question 
has  not  been  carefully  considered.  We  think,  however, 
that  a  judgment  recovered  under  such  circumstances, 
while  it  is  admissible  to  show  the  eviction  of  the  cove- 
nantee, does  not  relieve  him  of  the  burden  of  proving  that 
guch  eviction  was  by  title  paramount.* 

§  188.  Parties  not  Obliged  to  Conduct  Suit.  —  It  seems 
that  there  are  cases  where,  although  a  party  to  a  suit  may 
have  the  right  to  recover  over  against  another,  yet  he  is 
not  permitted  to  make  such  other  person  a  party  to  the 
litigation.     A,  having  left  a  note  with  a  bank,  afterward 

1  Griffin  v.  Reynolds,  17  How.  609.  Walton  v.  Carr,  67   Ind.  164;   Knapp 

a  Carpenter  v.  Pier,  30  Vt.  81;    73  v.  Marlboro,  31    Vt.  674;   Everling  v. 

Am.  Dec.  288.  Holcomb,    74    Iowa,    722;    Booker   v. 

sCollingwoodv.Irwin,  SWatts,  306;  Bell,  3   Bibb,    173;    6   Am.  Dec.  641; 

Tamu  Shaw,  10  Ind.  469.  King  v.  Kerr,  5   Ohio,  154;    22   Am. 

♦  Eycrson  v.  Chapman,  66  Me.  557;  Dec.  777. 


§  189       OF    THE    PERSONS    AFFECTED    BY    JUDGMENT. 


346 


sued  it  for  neglecting  to  give  notice  to  the  indorsers. 
This  hank,  claiming  that  the  negligence  was  attributahle 
to  its  cashier,  notified  him  of  the  suit,  and  that  he  would 
he  held  responsible.  He  was  offered  the  defense,  but 
declined  to  undertake  it.  A  recovered  judgment.  After 
this  the  bank  sued  its  cashier  for  negligence.  The  judg- 
ment against  the  bank  was  treated  as  admissible  evidence 
to  show  the  fact  and  the  amount  of  the  recovery  which 
had  been  had  against  plaintiffs,  but  not  for  any  other 
purpose,  because  "  this  is  not  a  case  where  recovery  over 
had  been  given  by  law  or  provided  by  contract  between 
the  parties,"  and  because  the  question  whether  the  negli- 
gence was  chargeable  to  the  cashier,  neither  was  nor 
could  be  litigated  in  the  former  suit.^  A  third  party  can- 
not be  called  upon  to  defend  an  action,  where  his  showing 
himself  not  to  be  liable  will  not  necessarily  result  in  a 
judgment  in  favor  of  the  party  asking  him  to  defend. 
Therefore  where  one  sells  personal  property  as  called  for 
by  a  bill  of  lading  issued  by  a  common  carrier,  and  is 
then  sued  by  his  vendee  on  the  ground  of  a  deficiency 
in  the  quantity  of  such  property,  he  cannot  bind  the  car- 
rier by  the  judgment  by  notifying  it  of  the  action  and  re- 
questing it  to  defend,  because  no  defense  which  it  could 
possibly  make  could  relieve  him  from  the  obligation  of 
compensating  his  vendee  for  the  deficiency  in  the  goods 
sold.^ 

§  189.  Not  Bound  by  Assisting  in  the  Suit.  — Unless  a 
person  is  one  of  the  real  or  nominal  parties  to  the  suit, 
or  is  so  identified  in  interest  with  some  of  such  parties 
that  he  is  obliged  to  participate  in  the  conduct  of  the  pro- 
ceedings if  requested,  he  cannot  be  bound  by  the  judg- 
ment. The  fact  that  he  managed  the  cause  as  agent  ^  or 
attorney,  or  interested  himself  in  it,  and  aided  the  prosecu- 

>  Bank  of  Owego  v.  Babcock,  5  Hill,  «  Thrasher  v.   Haines,  2  N.  H.  443; 

152.  Breedlove  v.    Turner,    9   Mart.    (La.) 

2  Garrison  v.  Babbage  Trans.  Co.,  94  353,  375. 
Mo.  130. 


847     OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.   §  190 

tiou  or  defense  with  or  without  any  employment  for  either 
party,  will  not  preclude  him  from  impeaching  the  judg- 
ment.* Neither  will  his  being  present  at  the  trial  as  a 
witness,  though  interested  in  the  subject-matter  of  the 
controversy,  bind  him  by  the  result.^  Thus  where  A 
sued  a  sheriff  for  a  horse  levied  upon  as  the  property  of 
B,  and  recovered  judgment,  B  being  present  and  testify- 
ing at  the  trial,  it  was  held,  in  a  subsequent  suit  by  B 
against  A  for  the  same  horse,  that  "it  is  of  no  conse- 
quence, prima  facie,  that  the  plaintiff  was  a  witness  for 
the  defendant  in  the  action  brought  by  this  defendant. 
He  had  no  right,  as  a  witness,  to  examine  or  cross- 
examine  other  witnesses,  or  to  call  other  witnesses  who 
might  have  better  knowledge  of  the  facts  than  himself. 
A  mere  witness  has  no  control  over  a  case  whatever,  and 
has  no  right,  to  appeal.  The  plaintiff  here  was  under  no 
obligation,  legal  or  moral,  to  defend  for  the  sheriff,  and  he 
had  no  right  to  defend  or  to  interfere."^  Even  an  agree- 
ment between  several  persons,  by  which  each  was  to  be 
bound  by  a  verdict,  and  to  have  the  right  to  cross-examine 
the  witnesses,  was  regarded  as  insufficient  to  make  the 
judgment  binding  on  any  of  the  parties  who  would  not 
have  been  bound  by  it  in  the  absence  of  such  agreement.^ 

§  190.  Distributees  of  Common  Fund.  —  "  The  prin- 
ciple is  well  settled  in  respect  to  proceedings  in  chancery 
for  the  distribution  of  a  common  fund  among  the  several 
parties  in  interest  therein,  either  on  application  of  the 
trustee  of  the  fund,  or  of  the  administrator,  legatee,  or 
next  of  kin,  or  on  the  application  of  any  party  in  interest, 
that  an  absent  party  who  had  no  notice  of  the  proceed- 
ings, and  not  guilty  of  willful  laches  or  unreasonable 
neglect,  will  not  be  concluded  by  the  decree  of  distribu- 

»Allinw.  Hall,  1  A.  K.  Marsh.  525;  518;   Hale  v.    Finch,   104   U.  S.  261; 

Brady   v.  Brady,  71  Ga.  71;   Cannon  Stryker  w.  Goodnow,  123  U.  S.  527. 
R.  A.  V.  Rogers,  42  Minn.  12.3;  18  Am.        •'■'  Blackwood  v.  Brown,  32  Mich.  104. 
St.  Rep.  497;  Goodnow  v.  Litchfield,         »  Yorks  v.  Steele,  50  Barh.  397. 
63  Iowa,  275;  Wilkie  v.  Howe,  27  Kao.        «  Patton  v.  Caldwell,  1  Dall.  419. 


§  190   OF  THE  PERSONS  AFFECTED  BY  JUDGMENT.     848 

tion  from  the  assertion  of  his  right  by  bill  or  petition 
against  the  trustee,  executor,  or  administrator;  or,  in  case 
they  have  distributed  the  fund  in  pursuance  of  an  order 
of  the  court,  against  the  distributees."  ' 

1  Williams  v.  Gibbes,  17  How.  239;  Matter  of  Howard,  9  Wall.  175. 


349  PERSONS    BOUND    BY    LIS    PENDENS.  §  191 

CHAPTER  X. 

PERSONS  BOUND   BY  LIS  PENDENS. 

§191.  Heasons  for  law  of. 

§  192.  Law  of,  applies  to  suits  at  law  and  in  equity. 

§  193.  Transfers  pendente  lite  cannot  piejiidice  suit. 

§  194.  Property  bound  by. 

§  195.  Commencement  of. 

§  196.  Suit  must  affect  specific  property. 

§  197.  Property  must  be  pointed  out  by  the  pleadings. 

§  198.  Is  notice  of  all  material  facts  in  the  pleadings. 

§  199.  Amendments  of  pleadings. 

§  200.  No  lis  pendens  between  co-plaintiffs  or  co-defendanta. 

§  201.  Affects  none  but  pendente  lite  alienees  and  encumbrancers. 

§  202.  Diligence  in  prosecution. 

§  203.  Revivor. 

§  204.  Dismissal  without  prejudice. 

§  206.  Writs  of  error  and  bills  of  review. 

§  206.  Termination  of  Us  pendens. 

§  207.  Lis  pendens,  with  the  property  in  court. 

g  208.  Involuntary  transfers. 

§  209.  Vendee  of  a  vendee. 

§  210.  Confined  to  state  where  property  is  situate. 

§  211.  Attorney's  lien. 

§  212.  Statutes. 

§  213.  Ejectment  in  California. 

§  214.  Notice  may  be  filed  before  the  complaint. 

§  191.  Reasons  for  Law  of  Lis  Pendens.  —  Besides  the 
parties  named  in  a  judgment  or  decree,  many  others  are 
brought  within  its  influence,  and  made  to  respect  its  com- 
mands and  to  abide  by  its  settlements.  Prominent  among 
these  parties  are  all  those  persons  who  have  brought 
themselves  within  the  principles  involved  in  the  law  of 
Us  pendens.  The  rules  applied  to  third  persons  becoming 
interested  in  the  subject-matter  in  litigation  by  acquiring 
the  title  of  one  of  the  parties  to  the  controversy  'pendente 
lite  have  been  explained  and  justified  upon  the  assump- 
tion that  those  rules  were  based  upon  notice,  actual  or 
constructive.     It  has  been  said  "that  all  people  are  sup- 


§  391  PERSONS    BOUND    BY    LIS    PENDENS.  350 

posed  to  be  attentive  to  what  passes  in  courts  of  justice,"^ 
and  that,  from  being  attentive,  they  must  be  informed  of 
the  various  matters  in  process  of  litigation  in  those  courts. 
But  the  more  reasonable  view  is,  that  the  law  of  lis  pen- 
dens is  not  based  upon  presumptions  of  notice,  but  upon 
a  public  policy  imperatively  demanded  by  a  necessity 
which  can  be  met  and  overcome  in  no  other  manner.'^ 
**It  is  a  careless  use  of  language  which  has  led  judges  to 
speak  of  it  [lis  pevidens]  as  notice  because  it  happens 
to  have,  in  some  instances,  a  similar  effect  with  notice." ' 
"The  justice  of  the  court  would  be  wholly  evaded  by 
aliening  the  lands  after  subpoBua  served,  and  the  suitor 
subject  to  great  delay,  expense,  and  inconvenience,  with- 
out any  certainty  of  at  last  securing  his  interest."*  In  fact, 
the  doctrine  of  lis  pendens  as  understood  and  enforced  at 
common  law  does  not  seem  to  have  required  even  such 
constructive  notice  as  would  in  all  cases  put  a  man  of 
ordinary  sagacity  on  his  guard,  or  as  would  have  enabled 
him  to  ascertain  whether  the  property  in  which  he  de- 
sired to  acquire  an  interest  was  involved  in  litigation. 
The  commencement  of  lis  pendens  dated  from  the  service 
of  the  subi^oena,  though  it  was  not  returnable  until  the 
next  term.  No  lis  pendens  existed  until  the  bill  was  filed, 
yet  the  filing  being  made,  the  lis  pendens,  by  relation,  was 
considered  as  in  force  from  the  service  of  the  subpoena. 
Under  such  a  system,  it  might  frequently  happen  that  a 
man  would  be  bound  by  a  suit  whose  object  he  could  only 
conjecture,  no  means  of  information  being  accessible. 
That  every  man  should  be  presumed  to  be  present  in  the 
courts  and  attentive  to  their  proceedings,  is  a  most  un- 
natural presumption,  —  a  fiction  not  merely  im.2:)robable, 
but  impossible,  since  by  no  human  power  can-  one  man 

*  Worsley  v.  Earl  of  Scarborongh,  3  97  Pa.  St.   153;  Houston  v.  Timmer- 

Atk.  392;  Green  v.  White,  7  Blackf.  man,  17  Or.  499;  11  Am.  St.  Rep.  848. 

242.  »  Watson  v.  Wilson,  2  Dana,  406;  26 

'^  Newman  v.  Chapman,  2  Rand.  98;  Am.  Dec.  459. 

14  Am.   Dec.  766;  Bellamy  v.  Sabine,  *  Ludlow's  Heirs  v.  Kidd's  Ex  r,  3 

1  De  Gex  &  J.  566;  Dovey's  Appeal,  Ohio,  541. 


351  PEKSONS    BOUND    BY    LIS    PENDENS.  §   191    ■ 

be  at  all  limes  in  attendance  upon  the  several  tribunals 
of  his  country  in  which  claims  to  specific  property  are 
determined.  But  the  necessity  of  the  rules  of  lis  pendens 
is  so  apparent  and  so  unavoidable  that  the  early  exist- 
ence and  continued  application  of  these  rules  were  indis- 
pensable to  a  wise  public  policy.  If  during  the  pendency 
of  any  action  at  law  or  in  equity  the  claim  to  ihe  prop- 
erty in  controversy  could  be  transferred  from  the  parties 
to  the  suit  so  as  to  pass  to  a  third  party,  unafi'ected  either 
by  the  prior  proceedings  or  the  subsequent  result  of  the 
litigation,  then  all  transactions  in  our  courts  of  justice 
would,  as  against  men  of  ordinary  forethought,  prove 
mere  idle  ceremonies.  A  series  of  alienations  protracted 
into  the  boundless  future  w^ould  forever  preclude  the  pre- 
vailing party  from  obtaining  that  to  which  he  had  vindi- 
cated his  claim. 

The  necessity  of  lis  pendens  and  the  perils  which  it  was 
designed  to  avert  w^ere  thus  forcibly  stated  by  Chancellor 
Kent  in  a  case  which  is  regarded  as  a  pioneer  in  the 
United  States  on  the  subject  on  which  it  treats,  and  which 
enjoys  the  distinction  of  being  quoted  and  approved  in 
every  part  of  our  country:  "The  counsel  for  the  defend- 
ants have  made  loud  complaints  of  the  injustice  of  the 
rule,  but  the  complaint  was  not  properly  addressed  to  me; 
for  if  it  is  a  well-settled  rule,  I  am  bound  to  apply  it,  and 
it  is  not  in  my  power  to  dispense  with  it.  I  have  no 
doubt  the  rule  will  sometimes  operate  with  hardship  upon 
a  purchaser  without  actual  notice;  but  this  seems  to  be 
one  of  the  cases  in  which  private  mischief  must  yield  to 
general  convenience,  and  most  probably  the  necessity  of 
such  a  hard  application  of  the  rule  will  not  arise  in  one 
out  of  a  thousand  instances.  On  the  other  hand,  we  may 
be  assured  the  rule  would  not  have  existed,  and  have  been 
supported  for  centuries,  if  it  had  not  been  founded  in 
great  public  utility.  Without  it,  as  has  been  observed  in 
some  of  the  cases,  a  man,  upon  the  service  of  a  subpcena, 
might  alienate  his  lands,  and  prevent  the  justice  of  the 


I  192  PERSONS    BOUND    BY    LIS    PENDENS.  352 

court.  Its  decrees  might  be  wholly  evaded.  In  this  very 
case  the  trustee  had  been  charged  with  a  gross  breach  of 
his  trust,  and  had  been  enjoined  by  the  jDrocess  of  the 
court,  six  months  before  the  sale  in  question,  from  any 
further  sales.  If  his  subsequent  sales  are  to  be  held  valid, 
what  temptation  is  held  out  to  waste  the  trust  property, 
and  destroy  all  the  hopes  and  interests  of  the  cestui  que 
trust!  A  suit  in  chancery  is,  in  such  cases,  necessarily 
tedious  and  expensive,  and  years  may  elapse,  as  in  this 
case,  before  the  suit  can  be  brought  to  a  final  conclusion. 
If  the  property  is  to  remain  all  this  time  subject  to  his 
disposition  in  spite  of  the  efforts  of  the  court  to  prevent 
it,  the  rights  of  that  helpless  portion  of  the  community 
whose  property  is  most  freq'uently  held  in  trust  will  be 
put  in  extreme  jeopardy.  To  bring  home  to  every  pur- 
chaser the  charge  of  actual  notice  of  the  suit  must  from 
the  very  nature  of  the  case*  be  in  a  great  degree  imprac- 
ticable."' 

§  192.     Is  a  Rule  both  at  Law  and  in  Equity.  —  In  the 

case  of  King  v.  Bill,  28  Conn.  593,  the  statement  is  made 
that  lis  pendens  is  a  purely  equitable  rule,  recognizable 
only  in  equity.  This  case  is,  however,  chiefly,  if  not  ex- 
clusively, remarkable  for  the  clearness  and  precision  with 
which  it  misstates  the  law  of  lis  pendens.  It  has  no  force 
as  an  authority,  being  overruled  by  the  case  of  Newton  v. 
Birge,  35  Conn.  250.  According  to  the  opinion  of  Lord 
Justice  Turner,  "  that  this  doctrine  belongs  to  a  court  of 

»  Murray  v.  Ballon,  1  Johns.  Ch.  566,  tin  v.  Stikes,  1  Cas.  Ch.  150:  Culpep- 

decided    in   1815.     To   show   that  lis  per  v.  Austin,  2  Ch.   Cas.    115;  Garth 

pendens  was  then  old  and  well  estab-  v.  Ward,  2  Atk.  174;  Preston  v.  Tub- 

lished    in    our    law,    the     chancellor  bin,  1  Vern.  286;  Sorrell  v.  Carpenter, 

quoted  the  ordinance  of  Lord  Bacon,  2  P.  Wins.  482;  Anonymous,   1  Vern. 

that    "no   decree    bindeth    any   that  318;  Finch  i7.  Kewnham,  2  Vern.  216; 

cometh  in   bona  fide,   by   conveyance  Walker     v.     Sinalwood,     Amb.     676; 

from   the   defendant,   before    the   bill  Bishop  of  Winchester  w.  Paine,  11  Ves. 

exhibited,    and    is    made    no    party,  194.     For  a  very  similar  view   of   lui 

neither  by  bill  nor  order;  but  where  pendens,  see  Bellamy  v.  Sabine,   1  De 

he  comes  m  peHcZe«)!e  ffie,  and  while  the  Gex  &  J.  566,  decided  in  1857;   also 

suit  is  in  full  prosecution,  and  without  Haughwout  v.  Murphy,   22  N.  J.  Eq. 

any  color  of   allowance  or   privity  of  544;  Metcalfe  v.  Pulvortoft,  2  Ves.  & 

the  court,  there  regularly  the  decree  B.  205. 
bindeth  ";  and  cited  the  cases  of  Mar- 


353  PERSONS    BOUND    BY    LIS    PENDENS.  §   193 

law,  no  less  than  to  courts  of  equity,  appears  from  a  pas- 
sage in  2  Institutes,  375,  where  Lord  Coke,  referring  to  an 
alienation  by  a  mesne  lord  pending  a  writ,  says  that  the 
alienee  could  not  take  advantage  of  a  particular  statute  of 
Westminster,  because  he  came  to  the  mesnalty  pendente 
brevi,  and  in  judgment  of  law  the  mesne  as  to  the  plaintiff 
remains  seised  of  the  mesnalty,  for  pendente  lite  nihil  inno- 
vetur."  ^  In  truth,  this  doctrine  seems  to  prevail  with  re- 
spect to  judicial  proceedings  of  every  character,  and  is 
therefore  applicable  to  proceedings  to  condemn  lands,^  to 
contest  the  validity  of  wills,^  to  seize  and  administer  the 
estates  of  bankrupts,*  and  to  foreclose  all  kinds  of  liens.^ 
In  many  of  the  states  statutes  have  been  passed  in  which 
the  doctrine  of  lis  pendens  is  regulated  and  limited.  These 
statutes  are  believed  not  to  apply  to  actions  in  the  federal 
courts  of  the  state,  unless  adopted  by  the  rules  of  those 
courts,  and  particularly  not  to  apply  to  suits  in  equity  in 
those  courts,  unless  so  adopted.^ 

§  193.     Transfers  Pendente  Lite  cannot  Prejudice  Suit. 

—  It  is  now  a  universally  recognized  rule  of  law  that  no 
alienation  or  transfer  of  the  subject-matter  of  the  contro- 
versy, made  wdiile  the  suit  is  being  prosecuted  with  due 
diligence,  need  be  noticed  by  the  parties  to  the  action. 
Such  alienation,  though  valid  between  the  parties  thereto, 
is  void  as  against  the  judgment  or  decree  finally  rendered 
in  the  suit.^ 

I  Bellamy  v.  Sabine,  1  De  Gex  &  J.  12  Ark.  411;  Shotwell  v.  Lawson,  30 

584-  Secombe  v.  Steele,  20  How.  94.  Miss.  27;  64  Am.  Dec.  145;  Walden  v. 

^'Plunimer    v.   Wausaw   B.    Co.,   49  BocUey's    Heirs,    9    How.    34;    Copeii- 

Wis.  449;  Roach  v.  Riverside  W.  Co.,  heaver  v.    Huffaker,    6   B.    ^Nlon.    IS; 

74  Cal.  263.  Jackson  v.  Warren.  32  111.  331;  Looniis 

3  Mcllwrath    v.   Hollander,    73   Mo.  v.  Riley,  24  111.  307;  Inloe's  Lessee  v. 

105:  39  Am.  Rep.  484.  Harvey,  11  Md.  519;  Sharp  v.  Lumley, 

*  KimberliuK  v.  Hartley,  1  McCrary,  34  Cal.  611;  Barelli  v.  Delassus,  16  La. 

13g  Ann.    280;    Calderwood   v.    Tcvis,    23 

"Wagner   v.    Smith,    13    Lea,    560;  Cal.  335;  Horn  v.   Jones,  28  Cal.  194; 

Wilson  V.  Wright,  72  Ga.  848.  Montgomery   v.  Byers,    21    Cal.    107; 

«  Majors  v.  CowcU,  51  Cal.  481.  Boulden    v.   Lanahan,    29    Md.    200; 

^  Moons  V.  Crowder,  72  Ala.  79;  Hurlbutt  v.  Butenop,  27  Cal.  50; 
Norton  V.  Birge,  35  Conn.  250;  Truitt  v.  Truitt,  38  Ind.  16;  Common- 
Bayer  V.  Cockerill,  3  Kan.  282;  Lee  v.  wealth  v.  r)ietren1)ach,  3  Grant  Cas. 
SaUnas,  15  Tex.  495;  Meuxt).  Anthony,  368;  Hughes  v.  Whitaker,  4  Heisk. 
JuDG.  I.— 2a 


§  193 


PERSONS    BOUND    BY    LIS    PENDENS. 


354 


Lis  pendens  is  often  spoken  of  as  operating  as  construct- 
ive notice  of  the  suit,  and  of  the  material  allegations  of 
the  pleadings  therein;^  but  its  real  effect  is  much  greater 
than  that  of  mere  notice.  It  has  the  effect  to  bring  the 
subject-matter  of  the  litigation  within  the  control  of  the 
court,  and  to  render  the  parties  powerless  to  place  it  be- 
yond the  power  of  the  final  judgment.  If  any  one  ac- 
quires any  interest  pendente  lite,  no  notice  need  be  taken 
of  him  or  his  acquisition.  He  need  not  be  made  a  formal 
party  in  any  way.  Nevertheless,  the  judgment,  when 
rendered,  must  be  given  the  same  effect  as  if  he  had  not 
acquired  his  interest,  or  as  if  he  had  been  a  party  before 
the  court  from  the  commencement  of  the  proceeding. 
His  interests  are  absolutely  concluded  by  the  final  deter- 
mination of  the  suit;^  and  this  is  true,  whether  the  trans- 
fer to  him  is  voluntary,  or  -he  has  undertaken  to  secure, 
pendente  lite,  an  attachment  or  execution  lien,  or  to  acquire 


399;  Walker  v.  Douglas,  89  111.  425; 
Snowman  v.  Harford,  62  Me.  434;  Til- 
ton  V.  Cofield,  93  U.  S.  163;  Jackson 
V.  Andrews,  7  Wend.  152;  22  Am.  Dec. 
574;  Smith  v.  Crocker,  65  Ga.  461; 
Whitney  v.  Higgins,  10  Cal.  547;  70 
Am.  Dec.  748;  Le  Roy  v.  Eogers,  30 
Cal.  229;  89  Am.  Dec.  88.  The  rule  is 
as  applicable  to  encumbrancers  as  to 
purchasers:  Youngman  v.  ElmiraR.  R. 
Co.,  65  Pa.  St.  278;  Masson  v.  Saloy, 
12  La.  Ann.  776;  and  affects  pur- 
chasers at  sheriff's  sale  to  the  same 
extent  as  if  the  alienation  was  volun- 
tary: Fash  V.  Ravesies,  32  Ala.  451; 
Steele  v.  Taylor,  1  Minn.  274;  Hall  v. 
.Jack,  32  Md.  253;  Hersey  v.  Turbett, 
27  Pa.  St.  418;  Cooley  v.  Bray  ton,  16 
Iowa,  10;  Hart  v.  Marshall,  4  Minn. 
294;  Crooker  v.  Crooker,  57  Me.  395; 
Berry  v.  Whitaker,  58  Me.  422.  In 
McPherson  v.  Housel,  13  N.  J.  Eq. 
299,  it  was  decided  that  the  vendee  of 
the  defendant  in  a  forelosure  suit 
takes  the  property  subject  to  all  costs 
which  may  be  made  in  the  case,  in- 
cluding those  occasioned  by  an  appeal 
prosecuted  by  the  defendant  subse- 
quently to  his  conveyance. 

'  Tredway   v.   MbDonald,  51    Iowa, 
663;   Meyer  v.    PorLis,  45   Ark.    420; 


Union  T.  Co.  v.  Southern  In.  Nav.  Co., 
130  U.  S.  565;  Randall  v.  Duff,  79  Cal. 
115;  Jackson  v.  Dickinson,  15  Johns. 
309;  8  Am.  Dec.  236;  Woodfolk  v. 
Blount,  2  Hayw.  (Tenn.)  147;  9  Am. 
Dec.  736. 

2  Union  T.  Co.  v.  Southern  In.  Nav. 
Co.,  130  U.  S.  565;  Kellar  v.  Stanley, 
86  Ky.  240;  Jones  v.  McNarrin,  68 
Me.  334;  28  Am.  Rep.  66;  Snowden  v. 
Craig,  26  Iowa,  156;  96  Am.  Dec.  125; 
Evans  v.  Welborne,  74  Tex.  530;  15 
Am.  St.  Rep.  858;  Stevenson  ii.  Ed- 
wards, 98  Mo.  622;  Roach  v.  Riverside 
W.  Co.,  74  Cal.  263;  Shelton  v.  John- 
son, 4  Sneed,  672;  70  Am.  Dec.  265; 
Pickett  V.  Ferguson,  45  Ark.  177;  55 
Am.  Rep.  545;  Jackson  v.  Andrews, 
7  Wend.  152;  22  Am.  Dec.  574;  Mel- 
len  V.  Moliue  M.  L  W.,  131  U.  S.  352; 
Powell  V.  Williams,  14  Ala.  476;  48 
Am.  Dec.  105;  Gould  v.  Heudrickson, 
96  111.  599;  Galbreath  v.  Estes,  38  Ark. 
599;  Welton  v.  Cook,  61  Cal.  481;  Ed- 
wards  v.  Norton,  55  Tex.  405;  Ray  v. 
Roe,  2  Blackf.  258;  18  Am.  Dec.  iofl; 
Murray  v.  Blatchford,  1  Wend.  583; 
19  Am.  Dec.  537;  Briscoe  v.  BouauLdi, 
1  Tex.  326;  46  Am.  Dec.  108;  Fortes 
V.  Hill,  30  Tex.  529;  98  Am.  Dec. 
48L 


355 


PERSONS    BOUND    BY    LIS    PENDENS, 


§194 


title  by  an  execution  or  judicial  sale.^  Jurisdiction  over 
the  subject-matter  is  always  essential.  In  its  absence,  no 
effect  can  be  given  to  proceedings  though  they  purport  to 
be  judicial,  for  in  law  they  are  extrajudicial.  Hence  if 
the  petition  or  complaint  does  not  disclose  a  subject-mat- 
ter within  the  jurisdiction  of  the  court,  "the  proceedings 
cannot  operate  as  a  lis  pendens,  even  from  the  date  of  the 
service  of  process."^ 

§  194.  Property  Bound  by.  —  Courts  have  occasionally 
exhibited  a  reluctance  in  applying  the  doctrines  of  It's  pen- 
dens to  any  property  other  than  real  estate.  And  it  has 
been  said  that  at  least  no  movable  personal  property,  to 
■which  possession  constitutes  the  chief  evidence  of  title,  is 
bound  by  the  suit,  in  the  hands  of  a  bona  fide  purchaser 
without  notice;  but  "it  may  be  conceded  that  at  this  day 
lis  pendens  applies  wuth  equal  force  to  controversies  in  re- 
gard to  personal  property."  *     Choses  in  action,  including 


'  Thorns  V.  Southard,  2  'Dana,  475; 
26  Am.  Dec.  467;  Rider  v.  Kelso,  53 
Iowa,  367;  Kimberling  v.  Hartley,  1 
McCrary,  136;  Northern  Bank  v. 
Deckebach,  83  Ky.  154. 

•-'  Jones  V.  Lusk,  2  Met.  (Ky.)  356; 
Benton  v.  Shafer,  47  Ohio,  129;  Pear- 
son V.  Keedy,  6  B.  Mon.  128;  43  Am. 
Dec.  160. 

s  Swantzr.  Pillow,  50  Ark.  300;  7  Am. 
St.  Rep.  98;  Carr  r.  Lewis  Coal  Co.,  15 
Mo.  App.  551;  McCutchen  v.  Miller,  31 
Miss.  65;Tabbi'.  Williams,  4  Jones  Eq. 
352;  Murray?;.  Ballon,  1  Johns.  Ch.  56ti. 
For  application  to  negotiable  notes  past 
due,  see  Kellogg  v.  Fanclier,  23  Wis.  21 ; 
99  Am.  Dec.  96;  to  purchase  of  a  patent 
pending  litigation,  to  have  it  declared 
void:  Tyler  v.  Hyde,  2  Blatchf.  308;  to 
suit  to  subject  bank  stock  to  a  certain 
trust:  Leitch  v.  Wells,  48  Barb.  6:>7; 
to  creditor's  bill  to  reach  furniture: 
Scudder  v.  Van  Amburgh,  4  Edw.  Ch. 
29;  to  railroad  bonds  in  Pennsyb  ania, 
where  such  bonds,  contrary  to  the  de- 
cisions in  other  states,  are  held  non-ne- 
gotiable: Diamond  v.Lawrence  County, 
37  Pa.  St.  353;  78  Am.  Dec.  429.  See, 
however.  Chase  v.Searles,  45N.  H.  511, 
where  the  application  of  lis  pendens  to 
personalty   seema  to   be   doubted  in 


general,  and  to  be  altogether  denied 
as  to  personal  property  sought  to  be 
made  available  to  the  satisfaction  of  a 
judgment  by  means  of  a  creditor's 
bill.  The  case  of  Leitch  v.  Wells,  re- 
ferred to  in  this  note,  has  been  reversed 
upon  appeal.  Three  of  the  commis- 
sioners of  appeals  by  whom  the  case 
was  decided  wrote  separate  opinions, 
each  assigning  somewhat  diflereut 
grounds  from  those  urged  by  his 
brethren  for  the  reversal.  Upon  the 
question  whether  the  property  in  con- 
troversy  was  of  such  a  nature  that  it 
could  be  bound  by  lis  pendens.  Com- 
missioner Earl  wrote  as  follows:  "Since 
the  decision  of  McNeil  v.  Tenth  Na- 
tional Bank,  46  N.  Y.  325,  7  Am.  Rep. 
341,  certificates  of  stock  with  blank 
assignments  and  powers  of  attorney 
attached  must  be  nearly  as  negotiable 
as  commercial  paper.  The  doctrine  of 
constructive  lis  pendens  has  never  yet 
been  applied  to  such  property.  This 
doctrine  must  have  its  limitations.  It 
could  not  be  applied  to  ordinary  com- 
mercial paper,  nor  to  bills  of  lading, 
nor  to  government  or  corporate  bonds 
payable  to  bearer.  Indeed,  I  do  not 
find  that  it  has  ever  been  applied,  and 
I  do  not  think  it  ought  to  be  applied, 


§   195  PERSONS    BOUND    BY    LIS    PENDENS.  356 

negotiable  paper  past  due,  are  subject  to  the  doctrine  of 
lis  pendens;'  in  fact,  the  only  property  not  so  subject  is 
negotiable  paper  not  past  due.^  When  such  paper  is  the 
subject  of  the  suit,  the  court  ought  to  require  it  to  be 
brought  into  court,  or  so  placed  that  the  defendant  can- 
not commit  a  fraud  upon  the  law  by  making  the  judg- 
ment unavailable.^  Every  consideration  of  necessity  and 
of  public  policy  which  demands  and  justifies  the  law  of 
lis  pendens  as  applied  to  real  estate  also  demands  and  justi- 
fies the  application  of  the  same  law  to  personal  property. 
In  fact,  the  ease  with  which  personalty  could  be  transferred 
to  parties  having  no  notice  of  the  litigation  is  much  greater 
than  in  the  case  of  real  estate.  The  probability  of  the 
defendant's  entirely  defeating  the  object  of  the  suit  by  a 
transfer  of  the  property  pendente  lite  is  rather  greater  in 
the  case  of  personal  than  of  real  estate,  and  the  necessity 
of  some  law  prohibiting  such  transfer,  to  the  prejudice  of 
the  prevailing  party,  is  therefore  greater  in  the  former 
case  than  in  the  latter.  But  the  necessity  of  preserving 
the  negotiable  character  of  negotiable  paper  not  due,  so 
as  to  require  no  inquiry  beyond  inspection  of  the  paper 
itself  in  relation  to  its  ownership,  has  properly  been  con- 
sidered paramount  to  the  necessity  of  avoiding  transfers 
pendente  lite,  and  that  class  of  paper,  therefore,  is  the  only 
property  not  liable  to  be  affected  by  the  doctrine  of  lis 
pendens. 

5  §195.  Commencement. — Lis  pendens  began,  by  the 
common  law,  at  the  teste  of  the  writ,''  and  in  chancery  on 
the  service  of  the  subpoena,  and  not  before,^  and  the  de- 

to  any  of  the  ordinary  articles  of  com-  merman,  68  Pa.  St.  72;  8  Am.  Rep.  157; 

merce      Public  policy  does  not  require  Kellogi?    v.    Faiicher,   23   Wis.   21;  99 

that  it  should  be  tlius  applied.       On  Am.  Dec.  96;  Mayberry  v.  Morris,  62 

the  contrary,   its  application  to  such  Ala.  1.32.                          ^,  •     „-      t^  t 

property  would  work  great  mischief,  ^  Stone  w.  Elliott,  11  Ohio,  2o2;  Keif- 

and  lead  to   great  embarrassments  ":  fer  v.  Ehlcr,  18  Pa.  St.  388. 

Leitch  V.  Wells,  48  N.  Y.  613.  ^  Newman  v.  Chapman,  2  Rand.  93; 

1  Diamond  v.  Lawrence  County,  37  14  Am.  Dec.  766. 

Pa   St   353;  78  Am.  Dec.  429.  *  Wickliffe  v.  Breckinridge,  1  Bush, 

2  Winston  V.  Westfeldt,  22  Ala.  760;  443;  Miller  v.  Sherry,  2  Wall.  2.37; 
58  Am.  Dec.  278;  Mims  v.  West.  38  Waring  v.  Waring,  7  Abb.  Pr.  472; 
Ga.  18;  95  Am.  Dec.  379;  Day  v.  Ziiu-  Goodwin  v.    McGehee,    15   Ala.  232. 


357  PERSONS    BOUND    BY    LIS    PENDENS.  §  195 

fendant  had  no  power  to  give  it  eflfect  at  an  earlier  day 
by  the  acceptance  of  the  service  of  the  subpoena  as  of  a 
date  prior  to  that  of  its  actual  service,^  It  is  also  neces- 
sary that  the  bill  be  filed,  but  upon  such  filing  the  lis 
pendens  begins  from  the  service  of  the  subpoena.^  In  Wis- 
consin, under  the  code,  a  summons  and  complaint  in  a 
proceeding  to  obtain  an  injunction  may  be  served  before 
either  is  filed  in  court.  Property  intended  to  be  affected 
by  such  a  proceeding,  having  been  transferred  bona  fide 
without  notice,  after  service  on  the  defendant,  but  before 
filing  the  papers  in  court,  it  was  held  that  the  doctrine 
of  lis  pendens  ought  not  to  be  applied,  where  there  was  no 
record  of  the  suit,  although  the  process  had  been  served; 
that  while  there  is  no  hardship  in  requiring  purchasers 
to  examine  the  records  of  the  county,  there  is  a  manifest 
hardship  in  requiring  them  to  take  notice  of  that  which 
no  examination,  however  patient  and  industrious,  could 
reveal,  and  that  no  case  exists,  under  the  code,  enforcing 
lis  pendens  before  papers  are  filed,  and  none  ought  to 
exist.^ 

The  doctrine  that  upon  the  filing  of  a  bill  or  com- 
plaint the  Us  pendens  takes  eifect  at  an  anterior  date  cor- 
responding with  the  date  of  the  service  of  the  subpoena 
lias  been  most  emphatically  repudiated.  This  doctrine  is 
based  upon  an  anonymous  case  decided  in  1685,  and  re- 

AUen    V.    Mandaville,    26   Miss.    397;  ^  Miller  v.  Kershaw,  1  Bail.  Eq  479; 

Butler  r.  Tomlinson,  38  Barb.  641;  Ed-  23  Am.   Dec.    183.     The   fact   that   a 

•wanls  V.  Banksmith,  35  Ga.  213;  Her-  copy  of  the  bill  was  read  tooue  defend- 

rington    v.    Herrington,    27   Mo.    5(iO;  ant  by  another  cannot  put  in  operatioa 

Lyle  V.  Bradford,   7  T.  B.  Mon.  115;  the  law  of  lis  pendens  before  the  sub- 

Haughwout  V.  Mnrphy,  22  N.  J.  Eq.  poena   is  served:  Williamson   v.  Wil- 

545;  Powell  v.  Wright,   7   Beav,  444;  liams,  11  Lea,  355. 

Jackson  v.  Dickenson,   15  Johns.  309;  '■'  Anonj'mous,   1  Vern.  318;  Sugdea 

8  Am.    Dec.   236;  Campbell's   Case,  2  on  Vendors,  1045. 

Bland,  209;  20  Am.  Dec.  360;  Murray  ^  Kellogg  v.  Fancher,  23  Wis.  21;  99 

V.   Blatchford,    1  Wend.   583;  19  Am.  Am.  Dec.  96.     And  an  order  to  file  a 

Dec.  537;  Scott  e.  ^McMillan,  1   Litt.  complaint  7)unc  pro  tunc  as  of  the  day 

302;  13  Am.  Dec.  239;  Majors  v.  Co-  when   the  notice  of  action  was   filed 

well,  51  Cal.  478;  Stone  v.  Tyree,  30  will  not  make  the  ^wj)e?K/e«.s  operative 

W.    Va.    687;    Staples   v.    White,    88  against  a  purchaser  after  the  filint;  of 

Tenn.   30;  Union  T.  Co.    v.   Southern  the  notice,  and  before  the  filing  oi   the 

In.  N.  Co.,   1.30  U.  S.  565;  Sanders  v.  complaint:  Weeks  v.  Tomes,  IP  Hun, 

McDonald,  63  Md.  503;  Grant  v.  Ben-  349. 
nett,  96  111.  513. 


§   195  PERSONS    BOUND    BY    LIS    PENDENS.  858 

ported  in  1  Vernon,  318.  This  case,  it  is  claimed,  has  never 
been  affirmed  or  approved  in  any  manner,  in  the  ahnost 
two  centuries  of  time  intervening  since  its  decision.  But 
on  the  other  hand  it  may  also  be  claimed  to  have  stood 
during  that  long  period  of  time  without  being,  until  very 
recently,  made  the  subject  of  judicial  dissent.  The  follow- 
ing are  the  views  of  Mr.  Commissioner  Earl,  expressed  in 
the  case  of  Leitch  v.  Wells,  and  sanctioned  by  the  judg- 
ment entered  in  that  case  by  the  commission  of  appeals 
of  the  state  of  New  York:  "  Suits  in  equity  may  now  be 
commenced  by  the  service  of  the  summons  alone;  but  it 
w^ould  be  quite  monstrous  to  hold  that  the  suit  shall  be 
deemed  pending  from  the  time  of  such  service,  so  as  to 
be  'constructive  notice'  to  all  the  people  of  the  state  of 
its  pendency.  No  record  is  kept  of  the  issuing  of  the 
summons,  and  it  is  not  required  to  be  filed.  It  may  be 
issued  b}''  any  one  of  several  thousand  lawyers  in  the 
state,  or  by  any  one  of  several  hundred  thousand  persons 
in  the  state  competent  to  be  plaintiffs  in  a  suit,  and  it 
might  not  be  possible  for  a  stranger  to  the  suit,  by  any 
degree  of  deligence,  to  learn  that  it  had  been  issued  or 
served;  and  if  he  did  perchance  learn  of  it,  it  would  give 
him  no  notice  whatever  of  the  subject-matter  of  the  liti- 
gation. If,  therefore,  the  mere  service  of  a  summons 
should  be  lis  pendens,  so  as  to  bind  strangers,  it  would  in- 
troduce great  uncertainty  and  embarrassment  into  trans- 
actions in  reference  to  personal  property,  provided  the 
rule  of  lis  pendens  were  extended  as  broadly  as  claimed 
for  the  plaintiffs  in  this  case.  I  therefore  hold  that  there 
is  no  lis  pendens,  so  as  to  give  constructive  notice  to 
strangers,  until  a  summons  had  been  served,  and  a  com- 
plaint, distinctly  stating  the  subject  of  the  litigation,  and 
specifying  the  claim  made,  has  been  filed  in  the  proper 
clerk's  office.  The  rule  as  thus  stated  is  sufficiently  hard 
and  unreasonable."  ^     Similar  views   prevail  in  Wiscon- 

'  Leitch  V.  Wells,  48  N.  Y.  611.     In     the  earlier  case  of  Hayden  v.  Bucklin, 
this  case  it  seems  to  be  assumed  that     9   Paige,  513,    was   inconsistent   with 


359  PERSONS    BOUND    BY    LIS    PENDENS.  §  196 

sill'  and  Kansas;  and  in  the  latter  state  though  the  com- 
plaint is  presented  for  filing  and  indorsed  as  filed,  yet  if 
it  is  withdrawn  from  the  clerk's  office  so  that  it  cannot  be 
seen  and  examined  there,  the  operation  of  the  law  of  lis 
pendens  is  thereby  suspended.*^ 

The  constructive  service  of  process,  when  authorized  by 
law,  is  equivalent  to  its  personal  service.  Whenever  the 
service  may  be  made  by  publication,  the  lis  pendens  is 
complete  upon  the  actual  publication  of  the  notice  for 
defendant  to  appear;^  but  it  seems  that  there  is-  no  lis 
pendens  until  the  order  for  publication  is  fully  executed. ■* 
Where  a  defective  subpoena  was  served,  and  afterwards 
the  service  was  set  aside,  and  the  subpoena  amended  so  as 
to  bear  date  the  day  the  service  was  set  aside,  it  was  held 
that  lis  pendens  did  not  begin  until  service  of  the  amended 
subpoena.' 

§  196.  Specific  Property  must  be  Affected.  —  To  deter- 
mine whether  an  action  or  proceeding  will  put  in  opera- 
tion the  doctrine  of  lis  pendens,  one  must  inquire  whether 
its  object  is  to  aff'ect  specific  property  or  not.  If  the  relief 
sought  includes  the  recovery  of  possession,  or  the  enforce- 
ment of  a  lien,  or  the  cancellation  or  creation  of  a  muni- 
ment of  title,  or  any  other  judicial  action  affecting  the 
title,  possession,  or  right  of  possession  of  specific  property, 
real  or  personal,  then  there  is  or  may  be  a  lis  pendens 
sufficient  to  bind  all  subsequent  purchasers  or  encum- 
brancers.^ If,  on  the  other  hand,  no  specific  property  is 
to  be   affected  by  the  judgment,  there   is  no  lis  pendens. 

the  decision  reported  in  1  Vernon.   But  461;    Hayden    v.    Bucklin,    9    Paige, 

Chancellor  Walworth  instead  of  doubt-  511. 

ing  the  case  in  1  Vernon,  cited  it,  and  *  Clevinger  v.  Hill,  4  Bibb,  408;  Car- 

also    similar    case    of    Moor   v.   Welsh  ter  v.    Mills,    30  Mo.    432;  Cassidy  v. 

Copper  Co.,  1  Eq.  Cas.  Abr.  89,  with  Kluge,  73  Tex.  154. 

apparent  approbation.  ^  Allen  v.  Case,  13  Wis.  621. 

1  Sherman    v.    Bemis,   58  Wis.   343;  ^  jj,osenheim  v.  Harstock,  90  Mo.  .357; 

pawson  V.  Mead,  71  Wis.  295.  Chaffe  v.  Patterson,  61  Miss.  28;  Hous- 

^  Wilkinson  v.  Elliott,  43  Kan.  590;  ton   v.   Timmerman,    17    Or.  499;     11 

19  Am.  St.  Rep.  158.  Am.  St.  Rep.  848;  O'Brien  v.  Putney, 

*  Chaudron   v.    Magee.   8  Ala.    .570;  55  Iowa.  292;   Spencer  v.  Credle,  102 

Bonnet's  Lessee  v.   Williams,  5  Ohio,  N.  C.  68. 


§   197  PERSONS    BOUND    BY    LIS    PENDENS.  360 

Hence  if  the  object  of  the  action  is  merely  to  recover  a 
money  judgment,  there  can  be  no  lis  pendens,^  though  the 
cause  of  action  may  arise  out  of  property  specified  in  the 
petition  or  complaint,  as  where  the  suit  is  to  recover 
the  value  of  such  property  or  compensation  for  injuries 
thereto.'^ 

A  suit  for  divorce  and  for  alimony  and  the  division 
of  common  or  other  property  may  or  may  not  operate 
as  a  lis  'pendens.  If  the  complaint  does  not  designate 
particular  property,  and  seek  to  subject  it  to  the  satisfac- 
tion of  the  wife's  claims,  or  to  have  it  set  aside  as  hers 
or  for  her  use,  she  is  not  entitled  to  the  benefit  of  the 
rules  of  lis  pendens,  because  her  suit  does  not  apply  to 
any  specified  part  of  the  husband's  estate,  real  or  per- 
sonal.^ The  judgment  which  may  be  obtained  may,  from 
the  docketing  thereof,  constitute  a  lien  on  certain  prop- 
erty; but  in  this  as  well  as  in  all  other  respects  it  no 
more  constitutes  a  lis  pendens,  or  a  claim  to  particular 
estate,  than  a  suit  upon  a  promissory  note  or  any  other 
sufficient  cause  of  action.  It  is  not  sufficient  that  the 
judgment,  unless  otherwise  paid,  will  be  satisfied  out  of 
the  sale  of  certain  real  estate,  unless  its  sale  is  directed 
by  the  judgment  as  part  of  the  relief  sought  by  the  com- 
plaint. If,  on  the  other  hand,  the  pleadings  in  a  suit  for 
divorce  describe  specific  property  in  respect  to  which  relief 
is  sought,  either  by  making  it  chargeable  with  the  payment 
of  alimony,  or  setting  it  apart  for  the  use  of  or  as  the 
property  of  one  of  the  parties,  or  of  partitioning  or  divid- 
ing it  between  them,  the  doctrines  of  lis  pendens  apply.* 

§  197.  Property  must  be  Pointed  out.  —  It  is  further 
essential  to  the  existence  of  lis  pendens  that  the  particular 

1  St.  Joseph  Mfg.  Co.  v.  Daggett,  S4  7  Md.  537;  61  Am.  Dec.  375;  Scott  v, 
111.  556;  Raw.  Eoe,  2  Blackfr  258;  18     Rogers,  77  Iowa.  483. 

Am.   Dec.    159;    White   v.   Perry,    14         *^Vi^ilkinsou  v.  Elliott,  43  Kan.  590; 

W.  Va.  66.  19  Am.  St.  Rep.  158;  Powell  v.  Camp- 

2  Gardner  v.  Peekham,  13  R.  I.  102.  bell,  20  Nev.  232;   19  Am.  St.  Rep.  350; 

3  Brightman  v.  Brightman.  1  R.  I.  Daniel  v.  Hodges,  87  N.  C.  95;  Toler- 
112;  Hamlin  v.  Bevans,  7  Ohio,  161;  ton  v.  Williard,  30  Ohio  St.  579;  Sapp 
28  Am.  Dec.  625;  Feigley  v.  Peigley,  v.  Wightman,  103  111.  150. 


861  PERSONS    BOUND    BY    LIS    PENDENS.  §  197 

properly  involved  in  the  suit  "be  so  pointed  out  by  the 
proceedings  as  to  warn  the  whole  world  that  they  inter- 
meddle at  their  peril."*  Therefore  a  suit  against  a  cor- 
poration to  forfeit  its  charter,"  or  against  its  directors  to 
compel  them  to  perform  their  duties,^  in  which  no  prop- 
erty is  described,  does  not  affect  'pendente  lite  purchasers. 
Where  a  suit  was,  among  other  things,  to  restrain  a  trus- 
tee from  "selling  any  more  of  the  trust  negroes,"  it  was 
held  not  to  affect  the  purchaser  of  a  negress,  because  "there 
was  nothing  calling  attention  to  her  in  the  bill  as  tlie 
identical  property  in  litigation.*  Hence  a  general  bill  for 
an  account  of  real  or  of  real  and  personal  estate  does  not 
create  such  a  lis  pendens  as  will  affect  a  purchaser,  but  the 
rule  is  otherwise  when  it  is  sought  to  charge  a  particular 
estate  with  a  particular  trust.*  In  a  leading  case  it  was 
said  that  a  bill  "must  be  so  definite  in  the  description 
that  any  one  reading  it  can  learn  thereby  what  property 
is  intended  to  be  made  the  subject  of  litigation."®  But  as 
it  is  also  stated  in  the  same  opinion  that  it  was  evident 
that  the  pleader  in  the  original  case  did  not  have  in  his 
mind  the  property  sought  to  be  affected  by  lis  pendens, 
the  language  of  the  court  is  probably  to  be  construed  as 
applicable  only  to  those  cases  in  which  there  is  nothing 
to  put  a  purchaser  upon  inquiry,  and  not  to  the  cases 
where  the  pleadings,  tliough  sufficient  to  put  a  purchaser 
on  his  guard,  do  not  in  themselves  contain  a  particular 
designation  of  the  property  in  controversy.  In  a  case 
where,  by  the  decision  of  Chancellor  Kent,  a  purchaser 
was  held  to  be  bound,  the  property  described  in  the  bill 
was  "divers  lands  in  Crosby's  manor,"  held  in  trust  for 
the  plaintiff  by  the  defendant.  Winter.  The  chancellor 
said:  "It  is  true,  there  might  have  been  'divers'  lands  in 
'Crosby's  manor'  held  in  trust  by  Winter,  and  yet  the 

1  Russell  V.  Kirkbride,  62  Tex.  455.  Jones  v.  McNarrin,  68   Me.   334;    28 

^  Havemeyer  v.   Superior  Court,  84  Am.  Rep.  60. 

Cal.  327;   18  Am.  St.  Rep.  192.  ''  Su^r.leii  on  Vendors,  1045. 

3  Paine  v.  Root,  121  111.  77.  «  Miller  v.  Slierrv,  2  Wall.  237;  Low 

*■  Lewis  V.   Mew,   1  Strob.  Eq.   180;  v.  Pratt,  53  111.  43S. 


§  198  PERSONS    BOUND    BY    LIS    PENDENS.  362 

lots  sold  to  defendant  have  been  held  by  him  in  his  own 
absolute  right.  But  though  this  was  a  possible  it  was 
an  improbable  fact;  and  if  ever  a  bill  contained  sufficient 
matter  to  put  a  party  upon  inquiry,  the  bill  in  1809  an- 
swered that  purpose.  The  doctrine  of  lis  pendens  is  indis- 
pensable to  right  and  justice,  in  the  cases  and  under  the 
limitations  in  which  it  has  been  applied;  and  according 
to  the  observations  of  Lord  Chancellor  Manners  we  must 
not  suffer  the  rule  to  be  frittered  away  by  exceptions. 
Was  it  too  much  to  have  required  of  a  purchaser  charged 
with  notice  of  all  the  facts  in  the  bill  to  have  called  upon 
Winter  to  discover  the  source  of  his  title?  The  general 
rule  is,  that  what  is  sufficient  to  put  the  party  upon  in- 
quiry is  good  notice  in  equity.  The  least  inquiry  even 
of  Winter  himself  would  have  satisfied  the  purchaser 
that  the  lots  he  purchased  were  parcel  of  the  trust  lands 
mentioned  in  the  bilL"*  From  this  decision,  which 
seems  to  be  sustained  by  reason,  it  would  follow  that  the 
description  in  the  bill  need  not,  in  itself,  be  so  specific  as 
to  necessarily  and  beyond  all  possibility  include  a  given 
tract  of  land;  but  that  it  is  ample,  for  the  purpose  of 
invoking  the  rule  of  lis  pendens,  if  the  land  in  all  prob- 
ability comes  within  the  description,  and  if  prospective 
purchasers,  upon  reading  the  bill,  are  advised  by  it  that 
the  land  with  which  they  propose  to  meddle  may  be,  and 
probably  is,  a  parcel  of  the  lands  in  litigation. 

§  198.  "Lis  Pendens  is  Notice  of  Every  Fact  Con- 
tained in  the  Pleadings  which  is  pertinent  to  the  trial  of 
the  matter  put  in  issue  by  them;  and,  in  a  chancery  case, 
of  the  contents  of  exhibits  to  the  bill  which  are  produced 
and  proved.'"^  Constructive  notice  of  matters  not  in 
issue,  and  not  pertinent  to  any  issue,  and  which  there- 
fore cannot  be  determined  in  the  action  or  proceeding, 
cannot  be  given  by  mentioning  them  in  any  pleading  or 

1  Green  v.  Stayter,  4  Johns.  Ch.  39.     743;    Moore  v.   Hershey,  90   Pa.   St. 
*  Center  v.  P.  &  M.  Bank,  22  Ala.     196. 


363  PERSONS    BOUND    BY    LIS    PENDENS.  §  199 

other  paper.*  So  an  action  to  determine  the  title  to  a 
mortgage  cannot  affect  parties  who  purchased  the  land 
subject  to  such  mortgage.^ 

Lis  pendens  does  not  affect  any  property  not  necessarily 
bound  by  the  suit.  Thus  if  money  is  secured  upon  an 
estate,  no  litigation  about  that  money,  but  not  about  the 
estate,  can  affect  a  purchaser  of  the  estate.'  Lis  pendens 
is  notice  of  all  facts  apparent  on  the  face  of  the  pleadings, 
and  of  those  other  facts  of  which  the  facts  so  stated,  ne- 
cessarily put  the  purchaser  on  inquiry;*  but  it  is  not 
notice  of  every  "  equity  which  by  possibility  can  arise  out 
of  the  matters  in  question  in  the  suit."^ 

§  199.  Amendments.  —  It  is  further  necessary,  in  order 
to  conclude  a  purchaser  by  virtue  of  a  judgment,  that 
by  the  record  in  the  case  at  the  time  of  the  purchase  the 
parties  to  the  suit  and  the  nature  of  the  claim  made  to  the 
property  should  be  so  stated  that  no  subsequent  amend- 
ment will  be  necessary.  If  any  amendment  is  made,  lis 
pendens  as  to  the  matters  and  parties  involved  in  the 
amendment  dates  from  the  time  it  is  made.  The  amend- 
ing of  a  bill  to  show  a  new  equity  creates  a  new  lis  pen- 
dens. Thus  where  property  was  sought  to  be  subjected 
to  the  payment  of  plaintift^'s  demands  upon  one  ground, 
and  that  ground  becoming  untenable,  the  bill  was 
amended  to  show  another  equity,  upon  which  plaintiff 
prevailed  in  the  suit,  a  purchaser  preceding  the  amend- 
ment was  held  not  to  be  bound  by  the  decree.®  The  de- 
cisions in  Ohio  have  established  an  exception  to  this  rule. 
A  bill  w^as  filed  to  subject  lands  to  the  payment  of  a  judg- 
ment, W'hich  was  subsequently  reversed  and  a  new  trial 

I  Page   V.  Waring,    76  N.    Y.   463;  ^  Shalcross   v.  Dixon,  7   L.  J.  Ch., 

Weiler  v.  Dreyfus,  26  Fed.  Rep.  S'24.  N.  S.,  180. 

*  Green  v.  Rick,  121  Pa.  St.  130;  6  «  Stone  v.  Connelly,  1    Met.    (Ky.) 

Am.  St.  Rep.  760.  652;  71  Am.  Dec.  499;  Jones  v.  Lusk, 

^  Worsley  v.  Earl  of  Scarborough,  3  2  Met.  (Ky. )  356;  Clarkson  v.  Morgan, 

Atk.  392.  6  B,  Moil.  441;  Wortham  v.  Boyd,  66 

«  Jones  V.  McXarrin,  68  Me.  3.34;  28  Tex.  401 ;   Holland  v.   Citizens'  S.  B., 

Am.   Rep.  66;    Lockvvnod  v.   Bates,  1  19  Atl.  Rep.  654  (R,  I.). 
Del.  Cli.  435;  12  Am.  Dec.  121. 


§  199  PERSONS    BOUND    BY    LIS    PENDENS.  364 

ordered.  Upon  the  new  trial  the  plaintiff  again  recov- 
ered. He  then  filed  his  supplemental  bill,  showing  the 
new  judgment,  aud  asking  that  the  same  lands  be  sub- 
jected to  its  payment.  A  question  afterward  arising 
whether  the  lands  were  bound  by  lis  pendens  prior  to  the 
filing  of  the  supplemental  bill,  the  court  said:  "It  is  as- 
sumed that  when  the  rig'ht  to  recover  in  the  bill  in 
equity  was  taken  away  by  the  reversal  of  the  judgment, 
the  suit  ceased  to  be  pending,  so  far  as  to  bind  the  prop- 
erty. We  are  not  satisfied  that  this  position  is  a  sound 
one.  No  such  distinction  is  to  be  found  in  the  books. 
But  the  doctrine  seems  plain  that  by  the  institution  of  a 
suit  the  subject  of  litigation  is  placed  beyond  the  powers 
of  the  parties  to  it;  that  whilst  the  suit  continues  in 
court,  it  holds  the  property  to  respond  to  the  final  judg- 
ment or  decree.  The  supplemental  bill  was  ingrafted 
into  the  original  bill  and  becomes  identified  with  it.  The 
whole  was  a  lis  pendens,  effectually  preventing  an  inter- 
mediate alienation."  ^ 

The  introduction  of  new  parties  is,  as  to  those  parties 
and  their  grantees,  a  new  lis  pendens,  to  which,  under  a 
statute  requiring  the  filing  of  a  notice,  a  new  notice  is 
indispensable.^  If  a  bill  of  review  sets  up  matter  not  in 
issue  in  the  original  suit,  then  all  parties  coming  in  after 
the  original  suit  are  not  bound  by  the  bill  of  review  un- 
less made  parties  to  it.^  There  can  be  no  doubt  that  the 
alienee  of  the  plaintiff  is  as  much  bound  by  the  judgment 
as  the  alienee  of  the  defendant.*  But  it  does  not  seem  to 
be  essential  to  the  binding  of  the  plaintiff's  vendee  that 
at  the  time  of  the  transfer  the  defendant  should  have 
disclosed  his  defense  or  his  claim  to  affirmative  relief.^ 

1  Stoddard  v.  Myers,  8   Ohio,  203;  "  Curtis  v.  Hitchcock,  10  Paige,  399; 

affirmed  in  Gibbon  v.   Dougherty,    10  Marclibanks  v.  Banks.  44  Ark.  48. 

Ohio  St.  365,   on  the  ground  that  the  ^  Debell  v.  Foxworthy's  Heirs,  9  B. 

substantial  object  of  the  suit  was  at  all  Mon.  228. 

times  the  same;  and  that  reversal  of  *  Bellamy  v.  Sabine,  1  He  Gex  &  J. 

the  judgment  for  an  irregularity  was  580. 

neither   an  extinguishment   nor  a  re-  *  Hall  L.    C.    V.   Gustin,  54   Mich, 

lease  of  plaintiif 's  rights.  624. 


365  PEESONS    BOUND    BY    LIS    PENDENS.  §  200 

Thus  a  mortgagor,  having  a  power  authorizing  him  to  sell 
the  premises  to  pay  his  debt,  commenced  a  suit  to  fore- 
close, to  which  he  made  A  and  B,  junior  mortgagees, 
parties,  and  subsequently  sold  the  lands  under  his  power 
of  sale  to  C.  After  such  sale,  A  and  B  filed  their  cross- 
bill. Upon  these  facts  it  was  decided  that  the  institution 
of  the  suit  created  a  lis  pendens  against  the  plaintiff,  and 
gave  the  junior  mortgagees  the  right  to  litigate  their 
claims  against  him  connected  with  the  mortgage;  that 
this  right  could  not  be  divested  by  means  of  any  subse- 
quent sale  or  transfer  made  to  a  third  party;  and  that 
plaintiff  could  not  lull  A  and  B  into  security  by  tendering 
them  an  opportunity  of  controverting  his  claims,  and 
then,  by  having  recourse  to  his  power  of  sale,  avoid  their 
equities. 

§  200.  Co-plaintiffs  and  Co-defendants.  —  The  doctrine 
of  lis  pendens,  not  being  founded  upon  any  of  the  peculiar 
tenets  of  a  court  of  equity  as  to  implied  or  constructive 
notice,  but  being  a  doctrine  common  to  the  courts,  both 
of  law  and  of  equity,  and  resting  *'  upon  this  foundation, 
that  it  would  plainly  be  impossible  that  any  action  or 
suit  could  be  brought  to  a  successful  termination  if  alien- 
ation pendente  lite  were  permitted  to  prevail,"  should 
not  be  carried  any  further  than  is  necessary  to  answer  the 
purposes  which  called  it  into  being.  The  doctrine  of  lis 
pendens  must  therefore  be  restrained  within  its  proper 
sphere,  and  not  so  enlarged  as  to  produce  results  not  at 
all  essential  to  the  carrying  the  judgment  or  decree  into 
complete  effect.  Thus  if  in  an  action  by  one  plaintiff 
against  two  or  more  defendants  it  appears  from  the  plead- 
ings that  one  of  the  defendants  has  certain  equities 
against  the  others,  but  those  equities  do  not  in  any  way 
affect  the  present  litigation  between  plaintiff  and  the  de- 
fendants, and  the  rights  of  the  defendants  between  each 
other  are  not  sought  to  be  determined,  no  Us  pendens  can 
be  crealed  beyond  the  purposes  of  the  suit,  and  an  alienee 


§   201  PERSONS    BOUND    BY    LIS    PENDENS.  366 

of  one  of  the  defendants  is  not  charged  with  implied 
notice  of  the  equities  between  the  co-defendants/  It 
would  seem  to  be  perfectly  clear,  in  the  absence  of  all 
authority  upon  the  subject,  that  there  could  be  no  lis  pen- 
dens between  co-plaintiffs  or  co-defendants  in  any  action 
not  designed  to  settle  the  rights  of  such  plaintiffs  or  de- 
fendants between  each  other,  no  matter  how  many  facts, 
not  material  to  the  present  controversy,  happened  to  find 
their  way  into  the  record.  If,  however,  upon  proper 
pleadings,  one  of  the  defendants  is  shown  to  have  certain 
rights,  as  against  the  others,  affecting  specific  property,  and 
entitling  him  to  relief  with  respect  to  such  property  in 
the  present  action,  a  purchaser,  after  such  pleadings  have 
been  filed,  and  notice  of  the  defendant's  claim  for  relief 
registered,  is  bound  as  a  purchaser  pendente  lite? 

§  201.    Affects   only  Pendente  Lite  Intermeddlers.  — 

The  lis  pendens  "is  only  constructive  notice  of  the  pen- 
dency of  the  suit  as  against  persons  who  have  acquired 
some  title  to  or  interest  in  the  property  involved  in  the 
litigation  "  under  the  parties  to  the  suit,  "or  some  of  them, 
pendente  lite."^  It  can,  in  no  circumstances,  operate  upon 
parties  whose  rights  were  acquired  anterior  to  the  com- 
mencement of  the  suit.*  Persons  purchasing  or  other- 
wise acquiring  interests  in  the  property  prior  to  the 
commencement  of  the  suit  are  not  regarded  as  having 
any  notice  of  it,  or  as  taking  a  right  or  title  which  can  be 
prejudiced  by  the  judgment  therein.® 

A  very  serious  question  is,  whether  this  rule  is  appli- 
cable to  persons  who  have  acquired  a  title  or  lien  by  virtue 

»  Bellamy  v.  Sabine,  1  De  Gex  &  J.  West,  17  N.  Y.  125;  Houston  v.  Tim- 

566.  merman,  17  Or.  499;  11  Am.  St.  Rep. 

^  Tyler  v.  Thomas,  25  Beav.  47.  848;  Banks  v.  Thompson,  75  Ala.  531; 

*  Stuyvesant  v.  Hall,  2  Barb.  Ch.  Coles  v.  Allen,  64  Ala.  93;  Newcomb 
151.  V.  Nelson,  54  Iowa,  824. 

*  Hunt  V.  Haven,  12  Am.  Law  Reg.  •  *  Arnold  v.  Smith,  80  Ind.  417; 
592;  52  N.  H.  162;  Haughwout  v.  Rodgers  v.  Dibiell,  6  Lea,  69;  Bradley 
Murpliy,  22  N.  J.  Eq.  545;  Ensworth  v.  Luce,  99  111.  234;  Hopkins  v.  Mc- 
i'.  Lambert,  4  Johns.  Ch.  605;  People  r.  Laren,  4  Cow.  677;  Curtis  v.  Hitch- 
Connelly,  8  Abb.  Pr.  128;  Chapman  v.  cock,  10  Paige,  399. 


867  PERSONS    BOUND    BY    LIS    PENDENS.  §  201 

of  a  conveyance  or  mortgage  Tvhich  lias  not  been  filed  for 
record,  and  of  which  the  person  invoking  the  aid  of  the 
law  of  lis  pendens  had  no  notice,  actual  nor  constructive. 
The  question  is  sometimes  controlled  by  statutes,  as  where 
suits  for  partition,  to  foreclose  liens,  and  the  like,  are 
commenced  and  conducted  under  enactments  declaring 
that  persons  whose  interests  do  not  appear  of  record  need 
not  be  made  parties,  or  that  when  a  notice  of  the  pen- 
dency of  an  action  is  filed  tlie  judgment  shall  bind 
persons  whose  conveyances  are  not  tlien  recorded.^ 
Generally,  the  statutes  authorizing  the  registration  of  writ- 
ings afiecting  the  title  to  real  property  do  not  make  them 
void  while  unregistered,  but  merely  protect  from  their 
operation  innocent  purchasers  or  encumbrancers  from  the 
parties  thereto,  or  some  of  them.  If  a  suit  results  in  the 
sale  of  property  so  that  some  one  becomes  an  innocent 
purchaser  thereunder,  he  is  doubtless  protected  from  un- 
recorded waitings  of  which  he  has  no  actual  or  construct- 
ive notice;^  but  unless  and  until  some  one  becomes  such 
a  purchaser,  one  whose  title  or  lien  antedates  the  suit,  but 
is  not  of  record,  is  not  bound  by  the  Us  pendens.  Hence 
if  a  suit  is  brought  by  A  against  B  to  quiet  title  to  prop- 
erty, or  to  recover  possession  thereof,  after  B  has  conveyed 
to  C,  the  latter  cannot  be  bound  by  the  judgment,  when 
he  is  not  a  party  to  the  action,  because  neither  A  nor  any 
of  his  grantees  can  be  regarded  as  purchasers  or  encum- 
brancers under  either  B  or  C,  w^ho  are  the  parties  to  the 
unrecorded  conveyance.' 

If  the  owner  of  land  has  entered  into  a  contract  for  its 
sale,  whereby  the  purchaser  has  become  vested  with  an 
equity  entitling  him  to  a  conveyance,  he  is  not  regarded 

*  Collingwood  v.  Brown,   106  N.  C.  Vose  v.  Morton,  4  Cush.  27;  50  Am. 

362;   Lament  v.  Cheshire,   65   N.  Y.  Dec.  750;  Hall  v.  Nelson,  2;}  Barb.  8S. 

30.  Contra,  Norton  v.  Bircfe,  35  Conn.  250; 

^  Post,  sec.  366;  Freeman  on  Execu-  Smith  v.  Hodsoii,  78  Me.  ISO;  but  this 
tions,  sec.  336;  Sprague  v.  White,  73  case  was  decided  under  a  statute  de- 
Iowa,  670.  daring  an  unrecorded  deed  to  be  void, 

'  Smith  V.  Williams,  44  Mich.  240;  except  as  against  the  grantor  and  his 

Hammond   v.  Paxton,  58  Mich.   393;  heirs  and  devisees. 


§   201  PERSONS    BOUND    BY    LIS    PENDENS.  368 

£is  a  purchaser  pendente  lite  as  to  any  suits  subsequently 
commenced,  and  a  conveyance  made  to  him,  though  during 
the  pendency  of  such  a  suit,  is  not  subject  to  the  judgment 
therein.^  One  in  possession  prior  to  a  suit  cannot  be 
divested  of  such  possession  under  a  judgment  against  his 
grantor,  Tliis  rule  aj)plies  where  the  possession  is  held 
under  an  executory  contract  as  well  as  under  a  completed 
purchase  and  ■payment.'^  Parties  having  an  interest  in 
lands  by  contract  of  purchase  with  the  legal  holders  of 
military  land-warrants,  having  paid  the  purchase-money, 
and  being  in  possession,  are  necessary  parties  to  a  suit, 
instituted  by  the  legal  holders  of  the  same,  to  compel  an 
assignment  of  such  w^arrants  and  all  interest  acquired 
under  them  by  entry,  location,  and  survey.  If  not  made 
parties,  they  are  not  prevented  by  the  doctrine  of  lis  'pen- 
dens from  proceeding,  during  the  pendency  of  such  suit, 
to  clothe  their  junior  equity  wdth  the  legal  title  by  pro- 
curing patents  from  the  United  States.^  In  a  case  decided 
in  New  York  in  1833,  the  defendants  had  made  contracts 
to  purchase,  under  which  they  had  entered  into  posses- 
sion of  the  lands,  and  held  and  improved  the  same  for 
several  years.  Suit  was  then  commenced  against  their 
vendor,  during  the  pendency  of  which  they,  without  an}^ 
actual  notice,  completed  their  payments  and  procured 
conveyances.  They  were  sought  to  be  bound  by  the  de- 
cree rendered  against  their  grantor;  but  it  was  decided 
that  the  reasons  on  which  the  doctrine  of  lis  pendens  were 
founded  were  inapplicable  to  the  case;  that  it  was  unrea- 
sonable to  compel  the  humble  tenant  in  possession  of 
the  land  to  examine  the  files  of  the  courts  every  time  he 
wished  to  pay  an  installment  of  the  purchase-raone}', 
while  no  hardship  could  be  occasioned  by  requiring 
plaintiff  to  make  parties  to  his  suit  all  persons  in  the  open 
possession  of  the  lands  to  be  affected  thereby.* 

»  Franklin  Sav.  B.  v.  Taylor,  131  111.         »  Gibler  v.  Trimble,  14  Ohio,  323. 
376;  Walker  v.  GoUlsmith,  14  Or.  125;         *  Parks  v.  Jackson,   11  Wend.  442; 

Rooney  v.  Michael,  84  Ala.  585.  25  Am.  Dec.  656. 

*  Clarkson  v.  Morgan,  6  B.  Mon.  441. 


369  PERSONS    BOUND    BY    LIS    PENDENS.  §  202 

As  the  operation  of  the  law  of  lis  pendens  cannot  extend 
to  persons  acquiring  title  under  either  of  the  parties  an- 
terior to  the  commencement  of  the  suit,  it  is,  if  possible, 
still  less  applicable  to  persons  whose  title  does  not  appear 
to  be  in  any  way  connected  with  the  parties  to  the  suit. 
Therefore  whoever  purchases  property  from  one  whose 
title  is  paramount  to  that  of  the  parties  to  the  suit,  or 
which,  if  not  paramount,  is  not  connected  with  it  or  them, 
by  anything  contained  in  the  proceedings  in  the  suit  or 
elsewhere  affecting  him  with  notice,  cannot  be  prejudiced 
by  their  suit.^ 

§  202.  Diligence.  —  The  doctrine  of  lis  pendens,  though. 
upheld  as  a  necessity,  is,  as  against  a  bona  fide  purchaser 
without  notice,  considered  as  a  hard  rule,  and  not  to  be 
favored.^'  On  the  one  hand,  it  is  said  that  "  courts  gladly 
avail  themselves  of  any  defect  in  the  pleadings  or  proofs 
of  the  plaintiflf  to  prevent  its  operation  upon  such  a  pur- 
chaser";^ while,  on  the  other  hand,  it  is  held  that  the 
benefit  of  lis  pendens  can  only  be  lost  by  unusual  and  un- 
reasonable delay,  and  not  by  ordinary  negligence.*  There 
can  be  no  doubt,  however,  that  to  aflfect  purchasers  there 
must  be  a  close  and  continuous  prosecution  of  the  suit; 
the  exercise  of  a  reasonable  diligence,  unaccompanied  with 
"any  gross  slips  or  irregularities  by  which  injury  could 
accrue  to  the  rights  of  third  parties."*  What  constitutes 
unreasonable  want  of  diligence,  or  undue  delay,  must  be 
decided  under  the  particular  circumstances  of  each  case. 
No  general  rules  upon  the  subject  have  come  under  our 

»  Allen  V.  Morris,  34  N.  J.  L.   159;  Clarksoa   ''•Morgan    6   B.  Mon.  441; 

Stuyvesant  v.  Hone,  1  Sand.  Ch.  419;  Watson  v.  Wilson,  2    Dana    406;    26 

Shaw  r.  Barksdale,  25  S.  C.  204;  Tra-  Am.   Dec.   459;    Myrick  t;.   Selden,  36 

vis   V.   Topeka  S.    Co.,   42    Kan.   625;  Barb.  22;  Edrneston  r,.  Lyde,  1  Pa.ge, 

fireenw   Rick    121  Pa.  St.  130;  6  Am.  637;    19    Am.    Dec.    454;    Trimble   v. 

St  Re;:  ?60   '  Boothby.  14  Ohio,   109;   45  Am.  Dec. 

2  Hayden  v.  Bncklin,  9  Paige,  511;  526;  Hayes  v.  Nourse    114  N.  Y.  595; 

Sorrell  t;.   Carpenter,  2  P.  Wms.  483.  11  Am.  St,  Rep.  700;  Durand  v.  Lord 

'LuaW  V.  Kid.l,  3  Ohio.  541.  115  111.  610;  Wallace  v.  Marquett,  88 

«Gossom  V.  Donaldson,  18  B.  Mon.  Ky.  130.     And  the  proseciitio.i  of  the 

230-  68  Am    Dec    7'^3  suit  must  not  be  collusive:  Kippetoe  ?\ 

6  Preston  *i>.  Tubbm,  1  Vern.  236;  Dwyer,  65  Tex.  703;  22  Am.  Rep.  370. 
JllDQ.  T.— 24 


§§  203,  204      PERSONS    BOUND    BY    LIS    PENDENS.  870 

observation;  and  perhaps  none  can  be  framed  which 
would  be  of  any  particular  service.  In  Kentucky,  suit 
was  commenced  to  foreclose  a  mechanic's  lien,  and  be- 
came ready  for  judgment  by  reason  of  the  defendant's 
filing  an  admission  of  the  allegations  of  the  complaint. 
Three  years  later,  no  decree  being  entered,  the  defendant 
mortgaged  the  same  premises  to  a  party  having  no  knowl- 
edge of  the  lien  or  suit.  The  delay  was  deemed  sufficient 
to  relieve  the  purchaser  from  the  operation  of  lis  pendens.*' 

§  203.  New  Suit,  and  Revivor.  —  If  a  suit  were  not 
prosecuted  with  effect,  — as  if,  at  law,  it  were  discontinued, 
or  the  plaintiff  suffered  nonsuit;  or  if,  in  chancery,  the  suit 
were  dismissed  for  want  of  prosecution,  or  for  any  other 
cause  not  on  the  merits;  or  if,  at  law  or  in  chancery,  any 
suit  abated, — although  in  all  such  cases  a  new  action  could 
be  brought,  —  it  could  not  affect  a  purchaser  during  the 
pendency  of  the  first  suit.^  In  case  of  abatement,  how- 
ever, the  suit  might  be  continued  in  chancery  by  revivor, 
or  at  law  in  real  actions  abated  by  death  of  a  party,  by 
journies  accounts,  and  the  purchaser  still  bound  by  the 
judgment  or  decree.'  But  in  all  cases  there  must  be  no 
laches  in  reviving  the  suit;  for  a  failure  to  revive  in  a 
reasonable  time  results  in  a  suspension  of  the  lis  pendens.* 
In  Kentucky,  "a  reasonable  time"  is  one  year.^  A  rea- 
sonable excuse  for  the  delay  complained  of  is  always 
available  to  keep  up  the  lis  pendens.'^ 

§  204.  Dismissal.  —  During  the  pendency  of  an  action 
in  equity  for  a  specific  performance,  A  purchased  the 
subject-matter  in  controversy.  The  bill  was  subsequently 
dismissed  without  prejudice,  with  leave  to  proceed  de  novo. 

1  Ebrmau  v.  Kendrick,  1  Met.  (Ky.)  *  Trimble  v.  Boothby,  14  Ohio,  109; 

14G-   Mann  v.  Roberts,  11  Lea,  355.  45  Am.  Deo.  526;  Shiveley  r.  Jones,  6 

••'Newman?;.  Chapman,  2  Rami.  98;  B.    Mon.    274;    Watson    v.    Wilson,   2 

14  Am.  Dec.  766;   Watson  v.  Wilson,  Dana,  406;  26  Am.  Dec.  459. 

2  Dana,  408;   26  Am.  Dec.  459:    Her-  =  Hull   v.  Deatly's   Adm  r,  7   Bush, 

rington  v.  Herrington,  27  Mo.  560.  687.                        .„      ,         . ,        ,  -r.     i 

3  Newman  v.  Chapman,  2  Raiul.  98;  «  Wickliffe  v.  Breckenndge,  1  Bush, 

14  Am.  Dec.  766;  Watson  r.  Wdson,  443. 
2  Daua,  408;  26  Am.  Dec  459. 


371  PERSONS    BOUND    BY    LIS    PENDENS.  §   205 

To  the  subsequent  proceeding  A  was  made  a  party,  but 
contended  that  his  purchase  was  without  notice  of  the 
plaintiff's  rights.  It  was  decided  that  the  effect  of  the 
former  suit  as  a  lis  pendens  was  not  impaired  by  the  dis- 
missal of  the  bill  with  leave  to  proceed  de  novo;  that  by 
the  immediate  filing  of  his  bill  de  novo  the  plaintiff  had 
been  constant  and  continuous  in  his  prosecution;  and 
that  it  might  well  be  doubted  whether  A  would  not  have 
been  affected  by  lis  pendens,  if  his  purchase  had  taken 
place  after  the  dismissal  of  the  first  bill,  and  before  the 
filing  of  the  second.^  But  in  another  case  the  doctrine 
that  a  purchaser  pending  a  bill  dismissed  without  preju- 
dice is  bound  by  the  subsequent  bill  is  expressly  denied.^ 

§  205.  Writ  of  Error  and  Bill  of  Review.  —  According 
to  some  of  the  authorities,  a  purchaser  after  final  decree, 
and  before  writ  of  error  or  bill  of  review  is  prosecuted,  is 
a  pendente  lite  purchaser.  Hence  a  party  purchasing 
land  from  a  person  who  had  obtained  a  conveyance  of 
the  land  from  a  commissioner  appointed  by  the  court  for 
that  purpose  is  liable  to  have  his  title  divested,  if  the  de- 
cree should  be  set  aside  by  bill  of  review  filed  after  the 
purchase;'  and  this,  although  the  defendants  were  infants, 
and  allowed  a  number  of  years  to  file  their  bill  of  review.* 
But  in  relation  to  writs  of  error,  the  position  has  been 
taken  that  **  until  service  of  citation  a  writ  of  error  is 
not  to  be  considered  as  pending  so  as  to  affect  strangers 
as  lis  pendens.  It  is  contended  that  a  writ  of  error  is  but 
the  continuance  of  the  original  suit,  and,  like  a  bill  of 
revivor  or  an  appeal,  reinstates  the  suit,  and  refers  all 
things  and  parties  to  its  first  commencement.  We  do  not 
concede  that  such,  in  all  cases,  would  be  the  consequence 
of  a  bill  of  review  or  of  an  appeal.     But  in  this  case  we 

1  Ferrier  v.  Buzick,  6  Iowa,  258;  Earle  v.  Crouch,  3  Met.  (Ky.)  450; 
Bishop  of  Winchesters.  Paiue,  11  Ves.  Gore  v.  Stackpoole,  1  Dow,  31;  Clark's 
Jr.  200.  Heirs  v.  Farrow,  10  B.   Mon.   44G;  52 

2  Clarkson   v.    Morgan,    6   B.   Mon.  Airi.  Dec.  552. 

441.  ^  Luillr.w's    Heirs  v.   Kid.l's  Ex'r,   3 

^  Debell  V.  Foxworthy,  9  B.  Mon.  Oliio,  541;  Bishop  of  WiucheaLer  i;. 
228;  Claiey  v.  Marshali,  4  Daua,  95;     Beaver,  3  Vea.  Jr.  314. 


§  206  PERSONS    BOUND    BY    LIS    PENDENS.  372 

think  the  analogy  does  not  hold  good.  In  the  obvious 
nature  and  character  of  the  proceeding,  a  writ  of  error  is 
a  new  and  original  suit.  Original  process  issues  in  it, 
and  must  be  served,  to  bring  the  adverse  party  into  court. 
The  relative  character  of  the  parties  is  changed,  new 
pleadings  are  made  up,  and  a  final  judgment  upon  it, 
though  it  may  operate  on  another  cause,  is,  nevertheless, 
a  termination  of  the  new  suit  or  process  in  error."  As 
the  result  of  these  views,  it  was  determined  tliat  when 
lands  had  been  awarded  to  A  by  the  decree  in  a  chancery 
suit,  and  he  had  been  placed  in  possession  thereof,  his 
subsequent  conveyance  of  the  lauds  passed  a  title  not 
liable  to  be  divested  by  a  writ  of  error,  unless  the  pro- 
ceedings upon  such  writ  were  commenced  and  citation 
served  on  the  defendant  in  error  prior  to  his  conveyance.^ 
Where  a  right  of  appeal  is  given,  it  seems  essential  to  the 
efficient  exercise  of  the  right  that  purchasers  should  be 
regarded  as  acquiring  their  interests  subject  to  the  con- 
tingency of  diminution  or  loss  by  the  subsequent  reversal 
of  the  judgment,  and  therefore  that  they  must  be  held  to 
be  purchasers  pendente  lite,  if  their  purchase  was  made 
at  any  time  after  the  commencement  of  the  suit  and  the 
decision  on  appeaL^ 

§  206.  Termination  of  Lis  Pendens. — "There  is  no  such 
doctrine  in  this  court  that  a  decree  made  here  shall  be  an 
implied  notice  to  a  purchaser  after  the  cause  is  ended, 
but  it  is  the  pendency  of  the  suit  that  creates  the  notice; 
for  as  it  is  a  transaction  in  a  sovereign  court  of  justice,  it 
is  supposed  that  all  people  are  attentive  to  what  passes 
there,  and  it  is  to  prevent  a  greater  mischief  that  would 
arise  by  people's  purchasing  a  right  under  litigation,  and 
then  in  contest;  but  where  it  is  only  a  decree  to  account, 
and  not  such  a  one  as  puts  a  conclusion  to  the  matters  in 

1  Tavlor   v.  Boyd,   3  Ohio,  337;    17  =  Smith  v.  Britteiiham,  109  111.  540; 

Am.    Dec.    603;   Ludlow   v.    Kidd,    3  Real    E.   S.  L    v.   Collonious,  65    Mo. 

Ohio,  541;  McCormick  v.   McClure,  6  290;  Carr  v.  Cates,  96  Mo.  271;  Dun- 

Blackf.  466;  39  Am.  Dec.  441;  Wool-  niugton  v.  Elston,  101  lad.  373. 
dridge  v.  Boyd,  13  Lea,  151. 


873  PERSONS    BOUND    BY    LIS    PENDENS.  §   206 

question,  that  is  still  such  a  suit  as  does  affect  people  with 
notice  of  what  is  doing.'"     The  language  here  used,  if 
true  at  all,  must  be  so  to  a  limited  extent  only;  for  if  the 
effect  of  the  rules  of  lis  pendens  terminates  with  the  entry 
of  judgment,  then  they  will  doubtless  be  evaded  in  all 
cases  by  transfers  made  thereafter.     Of  what  advantage  is 
it  to  declare  that  transfers  made  during  the  pendency  of 
an  action  shall  not  prevail  as  against  the  judgment,  but 
that  transfers  made  immediately  afterwards  shall  not  be 
affected  by  it?     If  a  judgment  is  rendered  for  the  sale  or 
possession  of  property,  or  for  any  other  relief  involving 
its  title,  certainly  it  is  not  true  that  a  subsequent  pur- 
chaser is  free  to  disregard  it,  or  at  liberty  to  hold  posses- 
sion of  the  property  and  relitigate  the  issues  determined 
by  the  judgment.^     It  may  be  that  after  judgment  the  lis 
pendens  does  not  operate  as  constructive  notice  for  pur- 
poses disconnected  with  the  suit,''  or  that  where  a  judgment 
is  by  statute  given  the  effect  of  a  conveyance  that  it  must, 
like  other  conveyances,  be  recorded,  to  charge  subsequent 
purchasers  with  notice  of  it  as  a  conveyance.     By  virtue 
of  a  statute  of  Indiana,  when  a  decree  for  the  conveyance 
of  land  is  not  complied  with,  it  shall,  notwithstanding,  be 
deemed  and  taken  to  have  the  same  force  in  all  courts  of 
law  and  equity,  as  if  the  conveyance  had   been  made. 
Pending  a  suit  for  specific  performance,  the  defendant 
conveyed  the  property  in  controversy  to  W.     Afterwards, 
a  decree  was  entered  and  a  conveyance  was  made.     This 
conveyance  was  recorded  among  the  records  of  the  court, 
but  not  among  the  records  of  the  county.     Subsequently 
W.  conveyed  to  J.     It  was  decided  that  J.  obtained  the 
title,  because  the  decree  was  not  notice,  and  the  records 
of  the  county  did  not  disclose  any  defect  in  W.'s  title; 
that  the  case  could  not  be  distinguished  from  that  of  judg- 
ment and  sale  at  law,  where  a  purchaser  under  execution 

1  Worsley  v.  Earl  of  Scarborough,  3  «  McCauley  v.  Rogers,  104  111.  578; 

Atk.  3'J2;  Harvey?'.  Montague,  1  Vern.  Biddle    v.    Toialinsoa,     115    Pa.     St. 

122;'Sugaen  on  Vendors,  1047;  Ludlow  2'J'X 

V.  Kidd;  3  Ohio,  541.  »  Coe  v.  Mauseau,  b2  W  is.  81. 


§§   207,208     PERSONS    BOUND    BY    LIS    PENDENS.  374 

who  does  not  put  his  deed  on  record  stands,  in  respect  to 
the  registration  laws,  as  if  he  had  purchased  from  the  de- 
fendant.^ But  a  purchaser  from  a  mortgagor,  after  a 
decree  of  foreclosure,  is  liable  to  be  removed  from  posses- 
sion under  a  writ  of  assistance.  "  It  cannot  be  objected 
that  the  case  is  no  longer  lis  pendens  after  decree  and 
sale,  and  a  conveyance  executed,  because  the  court  of 
chancery  is  not  functus  officio  until  the  decree  is  executed 
by  delivery  of  possession."^ 

§  207.  Where  Realty  is  in  Possession  of  the  Court.  — 
In  case  real  estate  is  taken  into  possession  by  a  court, 
through  the  appointment  of  a  receiver,  or  by  sequestra- 
tion, it  is  not  to  be  intermeddled  with,  without  leave  of 
the  court.  Any  person  having  a  paramount  claim,  by 
judgment  or  mortgage,  should  appear  in  court  and  ob- 
tain leave  to  proceed.  The  court  will  direct  a  master  to 
inquire  into  the  circumstances  or  as  to  the  priority  of  the 
lien,  and  will  take  care  that  the  fund  realized  from  the 
land  is  applied  accordingly.  A  party  having  a  prior 
legal  encumbrance,  and  having  no  notice  of  the  proceed- 
ing in  equity,  may,  no  doubt,  still  hold  such  encumbrance 
after  the  land  is  sold  at  equity,  and  might,  after  the  land 
had  been  removed  from  the  possession  of  the  court  of 
chancery,  pursue  his  legal  remedy;  but  if,  while  the  land 
is  in  custody  of  equity,  he  takes  out  execution  and  sells, 
the  purchaser  will  take  no  title  as  against  the  chancery 
sale.' 

§  208.  Involuntary  Transfers.  —  A  distinction  no  doubt 
exists  as  to  the  effect  of  voluntary  transfers  pendente  lite, 
and  those  compulsory  transfers  made  by  operation  of  law, 
in  which,  as  in  involuntary  proceedings  in  bankruptcy, 
the  property  of  a  party  is  transferred  to  an  assignee  for 
the  benefit  of  creditors.  Such  assignee  is  not  bound  to 
know  what  suits  are  pending  to  aflPect  the  property  of  the 

^  Rosser  v.  Bingham,  17  Ind.  542.  ^  Wiswall    v.    Sampson,     14    How. 

*  Jackson  v.  Warren,  32  111.  331.  52. 


875  PERSONS    BOUND    BY    LIS    PENDENS.  §  209 

assignor;  and  it  has  been  held  that  he  will  not,  in  any 
event,  be  bound  by  any  proceeding  pending  against  his 
assignor  at  the  time  of  the  transfer,  unless  he  is  made  a 
party  thereto.*  But  where  the  proceeding  is  voluntary,  it 
is  instituted  rather  for  the  benefit  of  the  applicant,  than 
for  the  protection  of  his  creditors.  A  transfer  in  such  a 
case  forms  no  exception  to  the  rule  of  ordinary  transfers 
pendente  lite.  The  assignee  is  bound  by  the  judgment, 
whether  he  is  made  a  party  or  not.^  But  a  purchaser  at 
an  execution  sale  is  considered  as  a  voluntary  purchaser. 
He  acquires  no  title  superior  to  that  possessed  by  the 
judgment  defendant  at  the  moment  of  the  creation  of  the 
judgment  lien.  If  when  such  lien  attached  the  title  for 
the  defendant  had  already  been  tied  up  by  the  pendency 
of  some  other  suit,  the  purchaser  at  the  execution  sale 
can  acquire  nothing  which  is  not  also  subject  to  the  haz- 
ard of  such  other  suit.  Such  purchaser  is  bound  by  the 
result  of  pending  litigation,  and  there  is  therefore  no 
necessity  of  making  him  a  party  thereto.^ 

§  209.  Vendee  of  Vendee.  —  An  early  case  in  Virginia 
is  understood  as  restricting  the  doctrine  of  lis  pendens  to 
purchases  and  conveyances  from  the  parties  to  the  suit^ 
and  as  having  no  force  against  a  person  who  obtains  a 
transfer  pendente  lite  from  some  person  who,  though  not 
himself  a  party  to  the  suit,  obtained  his  title  pendente  lite 
from  one  who  was  such  a  party.*  This  case,  so  far  as  our 
observation  extends,  has  never  been  affirmed;  but  the 
cases  necessarily  in  direct  conflict  with  it  do  not  seem  to 
be  numerous.^  The  general  expression  that  lis  pendens 
only  affects  purchasers  from  parties  to  the  suit  pendente 
lite  is  of  frequent  occurrence  in  the  reports.  Upon  ex- 
amination of  the  cases  in  which  such  expressions  are 
employed,  they  will  generally,  if  not  invariably,  be  found 

'  Sedswick   v.  Cleveland,   7   Paige,         » Steele    r.    Taylor,    1    Minn.    278; 

ngo  Hart  V.  iMarshall,  4  Minn.  2%. 

^Cleveland  v.  Boerum,    24  N.    Y.         ^  F'encl.  v.  Loyal  Co     5  Leiplj    627. 

gjo  *  Norton  v.  Birge,  6o  Couu.  2yU. 


§§  210,  211      PERSONS    BOUND    BY    LIS    PENDENS.  876 

to  be  intended  as  statements  of  the  rule  applicable  to 
transfers  made  prior  to  the  institution  of  any  suit,  or  to 
transfers  pendente  lite  of  titles  existing  independent  of  that 
in  litigation.  It  would  be  very  strange  that  if,  after  the 
general  application  of  the  doctrine  of  lis  pendens  had  been 
upheld  for  ages  as  absolutely  indispensable  to  the  admin- 
istration of  justice,  a  limitation  should  be  imposed  neces- 
sarily subversive  of  the  whole  doctrine.  If  two  or  more 
pendente  lite  transfers  are  to  be  allowed  to  thwart  the  pur- 
poses of  a  suit,  then  the  principles  of  necessity  and  of 
public  policy,  of  which  so  much  has  been  said,  are  to  be 
reo-arded  as  decidedly  more  important  than  the  interests 
of  a  pendente  lite  purchaser,  but  decidedly  less  important 
than  the  interests  of  his  vendee.  If  the  final  judgment 
in  any  action  in  reference  to  specific  property  may  be 
nullified  by  two  transfers,  instead  of  by  one,  the  difficulty 
of  the  extra  transfer  is  not  likely  to  furnish  any  consid- 
erable protection  to  the  judgment. 

§210.  Confined  to  the  State.  —  AAQien  slaves  which 
were  subject  to  a  suit  in  Tennessee  were  taken  into  Ken- 
tucky and  sold,  the  courts  of  the  latter  state  held  the 
purchasers  bound  by  the  judgment  in  Tennessee.^  Not- 
withstanding the  opportunity  to  evade  the  force  of  a  judg- 
ment  by  removing  the  subject-matter  of  litigation  to 
another  state  and  there  disposing  of  it  to  innocent  pur- 
chasers, resulting  from  deciding  that  the  operation  of  lis 
pendens  is  limited  by  state  lines,  yet  we  apprehend  that 
this  limitation  must  be  regarded  as  established,  and  that 
purchasers  of  property  situate  in  one  state  cannot  be 
bound  by  judicial  proceedings  against  it  in  another,  of 
which  they  had  no  notice.'^ 

§  211.  Lien  of  Attorneys.  —  Where  by  law  the  attor- 
neys  in  a  cause  have  a  lien  upon  property  involved  in 

»  Fletcher  r.  Ferrel,  9  Dana,  372;  35     70  Am.  Dec.  265;  Carr  v.   Lewis  Coal 
Am.  Dec.  143.  Co.,    96    Mo.    149;    9   Am.    St.   Rep. 

"  Sheltoa  v.  Johnson,  4  Sueed,  683;     328. 


377  PERSONS    BOUND    BY    LIS    PENDENS.  §  212 

litigation  for  their  fees,  the  lis  pendens  is  a  general  notice 
of  such  lien,  and  the  client  cannot,  by  a  pendente  lite 
transfer,  defeat  the  claim/ 

§  212.  Statute  Requirements.  —  The  hardship  to  bona 
fide  purchasers  of  real  estate  without  notice  arising  from 
the  law  of  lis  pendens  has  been  greatly  ameliorated  in 
England,  and  in  many,  if  not  in  all,  of  the  United  States 
by  statutes  requiring  the  filing  of  notices  of  the  pendency 
of  actions  affecting  real  property.  Thus  in  England,  by 
statute  2  Victoria,  chapter  1157,  it  was  enacted  that  no  lis 
pendens  shall  bind  a  purchaser  or  mortgagee  without  ex- 
press notice,  until  a  memorandum  or  minute  thereof,  con- 
taining the  name  and  the  usual  or  last  known  place  of 
abode,  and  the  title,  trade,  or  profession  of  the  person 
whose  estate  is  intended  to  be  affected  thereby,  and  the 
court  of  equity,  and  the  title  of  the  cause  or  information, 
and  the  day  when  the  bill  or  information  was  filed,  shall  be 
left  with  the  senior  master  of  the  court  of  common  pleas, 
who  shall  forthwith  enter  the  same  particulars  in  a  book, 
in  alphabetical  order,  by  the  name  of  the  person  whose 
estate  is  to  be  aff'ected.  In  the  United  States,  the  notice  is 
not  generally  required  to  state  all  of  the  particulars  speci- 
fied in  the  English  statutes,  our  law-makers  being  satisfied 
with  a  notice  showing  the  nature  of  the  suit,  the  parties 
thereto,  the  court  W'here  pending,  and  the  property  to  be 
affected  thereby,  and  the  filing  of  such  notice  in  an  office 
in  the  county  where  the  real  estate  is  situate  and  where 
the  records  aff'ecting  it  are  kept,  and  the  indexing  of  the 
notice,  alphabetically,  according  to  the  names  of  the 
parties  to  the  suit.  If  no  notice  is  filed,  pendente  lite  pur- 
chasers are  wholly  unaffected  by  the  judgment,^  unless 
they  have  actual  knowledge  of  the  suit,  in  which  event 
they  are  not  protected  by  the  statute.^ 

'  Hunt    V.    McClanahan,    1    Heisk.  ardson  v.  White,  18  Cal.  102;  Ault  v. 

503;     McCain    v.     Portis,     42     Ark.  Gassaway,  18  Cal.  205;  Abadle  r.  Lo- 

402.  l>ero,  :^6  "Cal.  390;  Leitch  v.  Wells,  48 

»  Benton  v.  Shafer,  47  Ohio  St.  117;  Barb.  637. 
Decamp  v.  Cariiahan,   2li  W.  Va.  S'.V.);         "  Sampson  v.  Olileyer,   22  Cal.   200; 

Easley  v.  Barksdale,  75  Va.  274;  llich-  Abadie  v.  Lobero,  3l>  Cal.  390;  Baker 


§  213  PERSONS    BOUND    BY    LIS    PENDENS.  378 

The  statutes  requiring  the  filing  of  a  notice  of  the  pen- 
dency of  the  action,  to  charge  subsequent  purchasers  or 
encumbrancers  therewith,  are  generally  and  perhaps  uni- 
versally confined  in  the  operation  to  real  estate,  and  doubt- 
less leave  the  law  with  respect  to  personal  propert}-  as 
though  such  statutes  had  not  been  enacted.  The  rules 
respecting  the  interpretation  and  recording  of  notices  of 
the  pendency  of  suits  are  similar  to  those  relating  to  other 
instruments  affecting  the  title  to  real  property.  Each 
notice  will  be  considered  as  a  whole,  and  inaccuracies  or 
mistakes  in  one  part  are  immaterial,  if  from  the  writing, 
as  a  whole,  no  doubt  remains  of  its  signification.^  Where 
a  litigant  has  done  all  the  statute  requires  him  to  do,  he 
does  not  lose  the  benefit  of  his  notice  by  the  failure  of  the 
proper  officer  to  index  it,  or  to  properly  enter  it  in  the 
records.'^  State  statutes  requiring  the  filing  of  notices  of 
the  pendency  of  actions  are  not  retroactive,  nor  do  they 
apply  to  proceedings  in  the  national  courts.^ 

§  213.  In  Ejectment.  —  Section  27  of  the  Practice  Act 
formerly  in  force  in  California  required  the  filing  of  no- 
tice of  the  pendency  of  actions  affecting  the  title  to  real 
estate.  This  section,  it  was  held,  did  not  apply  to  actions 
of  ejectment,  nor  to  any  actions  affecting  the  possession 
only.  In  such  actions  the  title  is  not  affected,  but  re- 
mains after  judgment  as  it  was  before.  Therefore  the 
pendente  lite  vendee  of  either  of  the  parties  was  held  to  be 
bound  by  the  judgment  rendered  against  his  grantor, 
though  no  notice  of  the  pendency  of  the  action  was  filed.* 
In  New  York,  where  a  judgment  in  ejectment  has  no  fur- 
ther or  higher  effect  than  in  California,  a  different,  and 
it  seems  to  us  more  rational,  conclusion  was  reached. 
The  supreme  court  in  that  state,  in  disposing  of  the  ques- 
tion, said:  "The  effect  given  by  this  statute  to  the  judg- 

V.  Pierson,  5  Mich.  456;  Wisconsin  C.  -  Helm  v.  Ellis,  49  Mich.  241;  Hav- 

R.  R.    Co.  V.  Wisconsin  River  L.  Co.,  erley  i'.  Alcott,  57  Iowa,  171. 

71   Wis.  94;  Wise  v.  Griffith,  78  Cal.  ^  Wilson  v.  Hefflin,  81  Ind.  35. 

152;  Whiteside  v.  Haselton,  110  U.  S.  ♦  Long  v.  Neville,  29  Cal.  1.31.     The 

296.  statute  has   since   l)cen   changed,   and 

^  Watson  V.   Wilcox,  39   Wis.  643;  Us  pendens  may  now  be  tiled  in  eject- 

20  Am.  Kep.  63.  meut  suits. 


379  PERSONS    BOUND    BY    LIS    PENDENS.  §   214 

ment  recovered  in  an  action  of  ejectment  clearly  rendered 
that  action  one  which  affected  the  title  of  the  property  in 
controversy  in  it;  for  it  bound  that  title,  not  only  as  to 
the  parties  to  the  action,  but  also  as  to  all  who  derived 
title  under  them  from  the  time  of  the  commencement  of 
the  action.  To  that  extent  the  judgment,  while  it  re- 
mained in  force,  conclusively  settled  the  rights  of  the 
parties,  and  those  claiming  under  them,  to  the  property 
in  controversy.  No  judgment  concerning  the  riglits  of 
parties  to  real  property  could  have  any  greater  effect  than 
that  upon  the  title  of  those  affected  by  it.  The  action 
was  one,  for  that  reason,  in  which  a  notice  of  its  pendency 
should  have  been  filed,  in  order  to  secure  this  statutory 
result  against  subsequent  purchasers  and  encumbrancers 
not  otherwise  having  notice  of  the  pendency  of  the  suit 
or  the  recovery  of  the  judgment."^  But  this  decision  was 
reversed  by  the  court  of  appeals,  on  the  ground  that  it  is 
difficult  to  see  how  in  an  action  of  ejectment  a  notice  of 
lis  pendens  can  be  necessary  to  bind  even  purchasers 
pendente  lite  by  the  judgment.'^  Proceedings  to  condemn 
land  are  of  the  class  requiring  notice  of  lis  pendens  to  be 
filed,  to  affect  pendente  lite  purchasers  without  notice.^ 

§  214.  Filing  Lis  Pendens  before  Complaint.  —  Unless 
the  statute,  in  effect,  requires  notice  of  the  pendency  of  an 
action  to  be  filed  after  it  is  begun,  it  will  probably  be 
effective  though  filed  several  days  before  the  suit  was 
commenced.  The  object  is  to  give  notice,  and  a  lis  pen- 
dens so  filed  gives  as  much  notice  as  one  filed  simulta- 
neously with  the  complaint.* 

'  Sheridan  v.  Andrews,  3  Lans.  129.  which  the  notice  of  action  was  filed, 

»  Sheridan   v.   Andrews,    49    N.   Y.  could  not  operate  to  cut  off  the  rights 

482.  of  a  purchaser  acquired  subsequent  to 

*  Bensley  v.  Mountain  Lake  Water  filing  the  notice,  but  before  the  actual 
Co.,  13  Cal.  300;  73  Am.  Dec.  575.  filing  of  the  complaint.     The  statute 

♦  Ilouehton  V.  Mariner,  7  Wis.  244;  ia  force  in  Wisconsin  now  requires  no- 
but  in  New  Jersey  a  lis  pendens  filed  tices  of  actions  to  be  filed  at  tlie  time 
before  the  bill  has  been  characterized  of  filing  the  complaint,  or  afterwards; 
as  a  fraud  and  a  nullity:  Walker  v.  but  if  the  suit  is  to  foreclose  a  mort- 
Hill's  Executors,  22  N.  J.  Eq.  525;  and  gase  the  notice  must  be  filed  twenty 
in  Weeks  v.  Tomes,  16  Hun,  349,  it  days  before  juds^tnent:  See  Sanborn 
was  held  that  an  order  to  file  a  com-  and  Berryiiian's  Wis.  Stats.,  sec.  3187; 
plaint  nunc  pro  tunc  as  of  the  day  on  Olson  v.  Paul,  56  Wis.  30. 


§  215  MERGER,  OR    FORMER    RECOVERY.  380 

CHAPTER   XL 

MERGER,   OR  FORMER  RECOVERY. 

§  215.  General  principles. 

§  216.  Includes  all  causes  of  action. 

§  217.  Judgment  as  a  new  debt. 

§  218.  Depends  on  valid  judgment. 

§  219.  Judgments  of  no  extraterritorial  effect. 

§  220.  Foreign  judgments. 

§  221.  In  sister  states. 

§  222.  Examples  of  merger. 

§  223,  Exceptions. 

§  224.  Merger  pendente  lite. 

%  225.  Criminal  prosecutions  and  convictions. 

§  225  a.     Principal  and  agent. 

§  226.  Principal  and  surety. 

§  227.  Co-plaintiffs  and  co-defendants. 

§  227  a.     Suits  on  bills  and  notes. 

§228.  Warrantor   and  grantee  — Garnishee  and  principal  — Corporation  and 

stockholder. 

§  229.  Collateral  securities. 

§  230.  Foreclosure  of  security. 

§  231.  Joint  obligors. 

§  232.  Partners. 

§  233.  Joint-debtor  acts. 

§  2:M.  Exceptions  to  law  of  co-obligors. 

§  235.  Joint  and  several  obligors. 
§  235  a.     Recovery  in  a  different  right  or  capacity, 

§  236.  Tort-feasors. 

§  237.  Whether  recovery  vests  title, 

§  2.38.  Indivisible  demands  ex  contractu, 

§  239.  Actions  on  account. 

§  240.  Only  one  action  on  one  contract. 

§  241.  Only  one  action  on  one  tort. 

§  242.  In  cases  for  injury  by  nuisances. 

§  243.  Several  torts. 

§  244,  Exception  to  general  law  of  merger. 

§  245.  Proceedings  in  insolvency. 

§  215.  General  Principles.  — The  entry  of  a  judgment 
or  decree  establishes  in  the  most  conclusive  manner  and 
reduces  to  the  most  authentic  form  that  which  had 
hitherto  been  unsettled,  and  which  had,  in  all  proba- 
bility, depended  for  its  settlement  upon  destructible  and 


381  MERGER,  OR    FORMER    RECOVERY.  §  215 

uncertain  evidence.  The  cause  of  action  thus  established 
and  permanently  attested  is  said  to  merge  into  the  judg- 
ment establishing  it,  upon  the  same  principle  that  a  sim- 
ple contract  merges  into  a  specialty.  Courts,  in  order  to 
give  a  proper  and  just  effect  to  a  judgment,  sometimes 
look  behind,  to  see  upon  what  it  was  founded,  just  as  they 
would,  in  construing  a  statute,  seek  to  ascertain  the  occa- 
sion and  purpose  of  its  enactment.  The  cause  of  action, 
though  it  may  be  examined  to  aid  in  interpreting  the 
judgment,  can  never  again  become  the  basis  of  a  suit  be- 
tween the  same  parties.  It  has  lost  its  vitality;  it  has 
expended  its  force  and  effect.  All  its  power  to  sustain 
rights  and  enforce  liabilities  has  terminated  in  the  judg- 
ment or  decree.^  It  "  is  drowned  in  the  judgment,"^  and 
must  henceforth  be  regarded  as  functus  officio. 

The  well-established  principle  of  law  that  no  further 
action  can  be  prosecuted  between  the  same  parties  upon 
a  matter  already  ripened  into  judgment  is  supported  by 
a  variety  of  reasons.  Its  operation  is  in  many  respects 
beneficial.  Its  existence  has  been  variously  accounted 
for,  according  to  the  purposes  subserved  and  the  reasons 
involved  in  the  vast  number  of  cases  in  which  it  has  been 
recognized.  The  early  decisions  place  the  rule  upon  the 
sole  ground  that  an  inferior  remedy  has  been  changed  to 
one  superior.  Thus  it  was  said  if  a  man  brought  debt 
upon  a  bond  and  had  judgment  in  a  court  of  record,  the 
contract  by  specialty,  being  of  a  more  base  nature,  Avas 
changed  into  a  thing  of  record,  and  no  further  suit  could 
be  brought  to  vex  the  defendant;  but  if  plaintiff  had  his 
judgment  in  a  court  not  of  record,  he  might  bring  an- 

'  Wayman  v.  Cochrane,  35  111.  15'2;  74   Mo.    477;   Grant   v.  Burgwyn,  88 

Hogg    V.    Charlton,    25    Pa.    St.    200;  N.   C.  95;  Mol.ile   Bank  v.  Mobile  etc. 

Baker  V.  Baker,  28  N.  J.  L.  13;  75  Am.  It.   R.  Co.,  69  Ala.  30.');  Thomason  »-. 

Dec.  243;  Barnes  v.  Gibhs,  31  N.  J.  L.  Odurn,  31  Ala.  168;  68  Am.  Dec.  159. 

317;  86  Am.    Dec.   210;    Pike  v.   Mc-  Merger  also  results  from  a  decree  for 

Donald,  .32  Me.  418;  54  Am.  Dec.  597;  the  payment  of  moneys  due  on  a  bond: 

Bank  of  N.  A.   v.  Wheeler,  28  Conn.  Mutual  F.  I.  Co.  v.  Newton,  50  N.  J.  L. 

433;  73  Am.  Dec.  683;  North  v.  Mudge,  571 . 

13  Iowa,  496;  81  Am.  Dec.  441;  Cook-         -'  Biddleson  v.  Whitel,  1  W.  Black, 

sey  V.    Kansas   City  etc.   R.   R.    Co.,  507. 


§  215        MERGER,  OR  FORMER  RECOVERY.  382 

other  action,  because  his  bond  had  not  been  changed  into 
a  matter  of  higher  nature.^     In  later  cases,  in  addition  to 
the  mere  assertion  that  the  judgment  is  of  a  higher  nature 
than  the  cause  of  action,  the  allowance  of  a  new  suit  is 
shown  to  be  a  superfluous  and  vexatious  encouragement 
to  litigation,  injurious  to  the  defendant,  and  of  no  benefit 
to  the  plaintiff.^    The  doctrine  of  merger  is  also  frequently 
supported  on  the  ground  that  the  cause  of  action  has  be- 
come a  thing  adjudicated  and  precisely  determined  and 
ascertained,   and    therefore,    upon    principles    of    public 
policy,  not  to  be  again  made  the  subject  of  judicial  in- 
quiry.    But,  in   our  judgment,  the  bar  occasioned   by  a 
former  recovery  has  been  gradually  strengthened  and  ex- 
tended, until  it  has  become  independent  of  the  reasons 
generally  assigned  in  its  support.     We  doubt  whether,  in 
a  majority  of  the  United  States,  two  suits  could  be  prose- 
cuted to  judgment  on  the  same  cause  of  action,  against 
the  objection  of  the  defendant,  irrespective  of  the  question 
whether  the  first  judgment  was  of  a  higher  or  lower  na- 
ture than  the  cause  of  action.     If,  for  instance,  an  action 
were  brought  in  a  justice's  court  upon  a  judgment  of  the 
district  court  for  a  sum  less  than  three  hundred  dollars, 
and  prosecuted  with  effect,  the  judgment  recovered  would 
be  of  a  lower  nature  than  the  one  sued  upon;  it  would  be 
no  more  a  thing  adjudicated  than  the  cause  of  action  was, 
and  yet  the  plaintiff  would  probably  not  be  at  liberty  to 
bring    similar    actions   ad    libitura.     The  new  judgment, 
though  inferior  as  an  instrument  of  evidence  to  the  old 
one,  and  not  attended  by  the  same  liberal  jurisdictional 
presumptions,  ought,  nevertheless,  to  entirely  supplant  the 
old  one,  because  it  is  the  most  recent  judicial  determina- 
tion of  the  rights  of  the  parties,  and  because  the  plaintiff 
has  voluntarily  elected  to  abandon  his  former  judgment  to 
secure  one  which,  though  in  an  inferior  court,  is  conclu- 
sive in  favor  of  the  continuance  and  amount  of  his  claim. 

>  Vin.    Abr.:   citing    6  Eep.    44   b,         '■'Smith   v.  Nicolls,   5   Bing.   N.   C. 
45  a,  b.  208;  7  Dovvl.  282. 


3S3  MERGER,  OR  FORMER  RECOVERY.        §  216 

§  216.  Includes  All  Causes  of  Action.  —The  weight  of 
authority  in  the  United  States  shows  that  whatever  may 
be  a  cause  of  action  will,  if  recovered  upon,  merge  into 
the  judgment  or  decree.*  A  contract  by  specialty  merges 
into  a  judgment,  in  the  same  manner  as  a  simple  contract.^ 
A  judgment  is  extinguished  when,  being  used  as  a  cause 
of  action,  it  grows  into  another  judgment.^  It  may  even 
be  merged  by  a  statutory  judgment.  Thus  if  the  law 
provides  for  the  execution  of  a  forthcoming  or  delivery 
bond,  which,  when  forfeited,  shall  have  the  force  and 
effect  of  a  judgment  on  which  execution  may  be  issued,  a 
forfeiture  of  such  bond  discharges  the  judgment  upon 
which  it  was  given."*  On  the  other  hand,  some  American 
cases,  proceeding  upon  the  theory  that  no  merger  can 
take  place  until  some  higher  remedy  or  evidence  is  cre- 
ated, deny  that  one  judgment  can  merge  into  another  of 
equal  degree.^  On  this  ground  a  motion  to  enter  satisfac- 
tion of  a  judgment  because  it  had  been  recovered  upon  in 
another  action  was  denied.^  The  effect  of  this  ruling 
would  be,  that  the  estate  of  the  debtor  could  be  involved 
by  a  multiplicity  of  record  liens,  and  his  chattels  seized 
under  a  great  number  of  executions,  and  himself  finan- 
cially ruined  by  the  expenses  of  divers  proceedings,  all 
based  upon  a  single  and  indivisible  demand. 

J-  Daviea   v.    New  York,   93  N.   Y.  bama:  See  Patton  v.  Hamner,  .33  Ala. 

259-  307.     In  Kentucky,   a  person   having 

■^  Pitts  V.  Fugate,  41  Mo.  405;  King  pleaded  guilty  to  an  indictment  char- 

V.  Ho  ire,  13  Mees.  &  VV.  494;  Andrews  ging  him  with  beinga  common  gambler, 

V.  Varrell,  46  N.  H.  17;  Grant  r.  Burg-  was  adjudged  "to  make  his  fine  to  the 

wyn,   8S  N.   C.  95;  Murray  w.  Weigie,  commonwealth  by  the  payment  of  fifty 

118  Pa   St.  159.  dollars."     For   this  fine    a  cap/as  pro 

'  Chitty  V.  Glenn,   3   B.    Mon.    425;  Jine  was  awarded  against  hitn,  which 

Whiting  V.  Beel)e,  12  ArU.  549;  Gould  he  replevied,  with  one  \V.  as  his  surety. 

V.  Hayden,  63  Ind.  443;  Frazier  v.  Mc-  At  the  maturity  of  the  replevin  bond, 

Queen,  20  Ark.  68;  Gould  v.  Hayden,  execution  issued  thereon,  and  was  re- 

63  Ind.  443.  turned  unsatisfied.     After  tliis,  a  sec- 

*  Brown  V.  Clark,  4  How.   4;  Bank  ond  capias  pro  fine  was  issued,  but  it 

of  U.  S.  V.  Patton, ;")  How.  (Miss.)  200;  was,  on  motion,  quashed,  on  the  ground 

35  Am.  Dec.  4-28;  Wright  v.   Ytll,   13  that  the  original  judgment  levynig  the 

Ark.  5  3;  58  Am.  Dec.  336;  Haniia  v.  fine  had    been  twnji-d  in  the   replevin 

Guy,  'A  liush,  91;  Cook  v.  Armstrong,  bond:  Commonwealth  v.   Merri<'an    8 

25  Miss.  63;  Neale  v.  Jeter,  20  Ark.  Bush,  182.                                       "     ' 

98;  Black  v.  Nettle,  25  Ark.  606;  Rus-  *  Weeks  v.  Pearson,  5  N.  H.  324. 

sel  V.  Shute,  25  Ark.  469;  Lipscomb  w.  *  Muinford  v.   Stocker,  1  Cow.    178; 

Grace,  26  Ark.  2;S1;  7  Am.    Rep.  (i()7.  Gri.swold  r.  Hill,  2  Paine,  492;  Andrewa 

But  a  difTcreut  rule  prevails  in  Ala-  v.  Smith,  9  Weud.  53. 


§  217        MERGER,  OR  FORMER  RECOVERY.  384 

A  person  often  has  the  privilege  of  pursuing  either  of 
several  forms  of  action  to  obtain  legal  redress  for  a  single 
wrong.  Whenever  he  resorts  to  an}''  action  in  which  it  is 
competent  for  the  court  to  award  him  full  compensation 
for  the  wrong  of  which  he  complains,  and  prosecutes  such 
action  to  final  judgment,  the  wrong  merges  in  the  judg- 
ment, and  thereafter  there  can  be  no  further  recovery 
therefor,  neither  in  the  same  nor  in  a  different  form  of 
action/  Therefore  a  recovery  in  assumpsit  on  a  policy  of 
insurance  bars  a  subsequent  action  of  covenant  on  the 
same  policy,^  and  a  recovery  in  an  action  of  covenant  bars 
an  action  of  case  founded  on  tort,  the  two  causes  of  action 
being  the  same;^  but  a  judgment  in  replevin  for  the  pos- 
session of  chattels  does  not,  while  it  remains  unsatisfied, 
preclude  a  recovery  in  trover  for  their  conversion,  because 
the  objects  of  the  two  actions  are  essentially  different.* 

§  217.  Judgment  is  a  New  Debt.  —  Every  judgment  is, 
for  most  purposes,  to  be  regarded  as  a  new  debt;  the 
chief,  and  perhaps  the  onl}^,  exception  being  in  cases  where 
the  technical  operation  of  the  doctrine  of  merger  would 
produce  manifest  hardship,  and  even  those  cases  are  by 
no  means  universally  excepted.  This  new  debt  is  not,  in 
general,  affected  by  the  character  of  the  old  one.  Though 
the  cause  of  action  may  have  arisen  from  a  tort,  the  judg- 
ment is  not  therefore  any  the  less  a  contract  or  in  the  nature 
of  a  contract.  The  tort  merges  in  the  judgment.*  Hence 
it  may  be  the  foundation  of  an  action  of  debt,^  or  of  a  set- 
off, under  a  statute  permitting  matters  ex  contractu  to  be 
set  off.^  Neither  is  it  infected  by  the  usurious  nature  of 
the  cause  of  action.^     The  assignee  of  a  note  sued  the 

'  Brown  v.  Moran,  42  Me.  44;  Ware  *  Carr   v.  Beecher,  119  N.  Y.   117. 

V.  Percival,  61  Me.  391;  14  Am.  Rep.  But  the  merger  does  not   take  place 

565;  Cutler  v.  Cox,  2  Blackf.  178;   18  until  the  judgment  is  rendered.    Hence 

Am.  Dec.  152.  a  tort  does  not  become  a  debt  when 

2  Marine  Insurance  Co.  v.  Young,  1  verdict  is  returned  thereon:  Staufferw. 
Cranch,  340.  Reiuick,  37  Kan.  404. 

3  Cutler  V.  Cox,  2  Blackf.   178;    18  ^  Johnson  v.  Butler,  2  Iowa,  535. 
Am.  Dec.  152.  '  Taylor  v.  Root,  4  Keyes,  335. 

*  Nickerson  v.  Cal.  Stage  Co.,  10  *  Thatcher  v.  Gammon,  12  Mass. 
Gal.  520.  268. 


385  MERGER,  OR  FORMER  RECOVERY.        §  217 

maker,  who  had  an  offset  to  the  note,  consisting  of  a  judg- 
ment against  the  assignor.  This  set-oflF  the  maker  did 
not  present  when  sued  upon  the  note,  and  judgment  was 
therefore  rendered  against  him  without  taking  the  set-off 
into  account.  Suit  was  subsequently  brought  in  another 
state  upon  this  last  judgment;  and  in  this  last  action 
the  defendant  sought  the  benefit  of  the  set-off,  which  he 
had  before  neglected  to  assert.  The  court  refused  to 
entertain  the  set-off,  because  "  the  note  and  all  the  equities 
existing  between  the  parties  were  merged  in  the  judg- 
ment." ^  A  judgment  rendered  in  one  state,  upon  a  for- 
feited recognizance  taken  for  alleged  violation  of  its  penal 
laws,  can  be  made  the  basis  of  an  action  in  another  state, 
though  objected  to  on  the  ground  that  one  state  will  not 
aid  in  enforcing  the  penal  laws  of  another.^  The  same 
rule  is  applicable  to  actions  upon  judgments  given  for 
violations  of  local  police  regulations,  or  for  any  other  local 
causes  of  action.^  In  all  such  cases,  no  inquiry  will  be 
made  in  relation  to  the  facts  preceding  the  judgment,  to 
ascertain  whether  the  original  action  would  have  been 
enforced  by  the  court  now  called  upon  to  enforce  the 
judgment.  A  debt  due  to  the  estate  of  a  deceased  person, 
if  sued  upon  and  recovered  by  an  administrator,  is,  in 
law,  the  debt  of  him  who  recovers  it,  and  in  whose  name 
the  judgment  is  rendered.  He  holds  the  legal  title,  sub- 
ject only  to  his  trust  as  administrator.  He  may  sue 
upon  the  judgment  in  his  own  name,  without  describing 
himself  as  administrator,  and  may  therefore  pursue  the 
judgment  defendant,  by  action  on  the  judgment,  in  a  dif- 
ferent state  from  that  in  which  the  letters  of  administra- 
tion were  issued;*  and  there  can  scarcely  be  a  doubt  that 

»  Ault  V.  Zehering,  3S  Ind.  433.  judgment":  Holmes  v.  Guion,  44  Mo. 

*  Spencer    v.     Brock  way,     1     Ohio,  168. 

259-  13  Am.  Dec.  615.  *  Bonafous  v.  Walker,  2  Term  Rep. 

3  State  of  Ind.  v.  Helmer,  21  Iowa,  126;    Biddle   v.  Wilkius,    1  Pet.  686; 

370;  Hcaly  j;.  Root,  11  Pick.  390.     A  Tallmadge   v.  Cliappel,   16   Mass.  71; 

judgment  by  consent  has  been  said  to  Hall  r.  Harrison,  21  Mo.  227;  64  Am. 

have  the  same  effect  as  any  other,  be-  Dec.  225;  Allen  v.  Lyman,  27  Vt.   20; 

cause  "the  consent  was  merged  in  the  Nelson  v.  Bagby,  25  Tex.  Supp.  305. 
JUDQ.  L— 25 


§  218  MERGER,  OR   FORMER    RECOVERY.  886 

a  judgment  rendered  in  favor  of  an  administrator  so 
merges  the  debt  that  it  may  be  treated  as  his  personal 
effects  so  far  as  to  authorize  him  to  maintain  suit  thereon 
in  a  foreign  country,  without  there  taking  out  letters  of 
administration.* 

§  218.  Depends  on  Valid  Judgment.  —  Merger  depends 
for  its  existence  and  continuance  upon  a  valid  judgment. 
Therefore,  if  such  a  mistake  is  made  in  the  name  of  the 
parties  as  to  render  the  judgment  ineffective,  the  cause  of 
action  does  not  merge,  and  a  subsequent  suit  may  be 
brought  thereon.'^  If,  in  support  of  a  plea  of  judgment 
recovered,  the  defendant  introduces  the  proceedings  or 
record  of  a  court,  from  which  it  appears  that  the  plaintifiE 
has  taken  a  judgment  which  is  coram  non  judice,  such 
judgment  will  be  as  unavailing  as  a  defense  for  the  de- 
fendant as  it  would  be  as  a  cause  of  action  for  the  plain- 
tiff.' In  all  such  cases  it  is  obvious  that  the  judgment 
produced  is  in  fact  no  final  determination  of  the  rights 
of  the  parties,  and  that  no  obstacle  has  intervened  to 
prevent  them  from  seeking  such  determination.  Though 
the  judgment  was  valid  at  its  entry,  it  may  be  reversed  or 
set  aside.  In  such  cases  the  merger  ceases.*  If  plaintiff 
recovers  judgment  against  one  of  several  joint  obligors, 
and  it  is  reversed,  he  may  proceed  against  all  of  them  in 
a  new  action.^  The  mere  taking  or  granting  of  an  appeal 
does  not  so  impair  the  judgment  as  to  destroy  its  effect  as 
a  merger  of  the  original  cause  of  action.^  If,  after  the 
entry  of  judgment  in  his  favor,  a  plaintiff  is  permitted  to 
discontinue  his  action,  this  nullifies  the  judgment,  and 

^  Vanquelin  v.  Boiiard,  15  Com.  B.,  159;  Readings  Rice,  3  J.  J.  Marsh,  61; 

N.  S.,  341;  33  L.  J.   Com.  P.,  N.  S.,  19  Am.  Dec.  162. 

78;  12  Week.  Rep.  128.  *  Goodrich  v.  Bodurtha,  6  Gray,  323; 

"  Wixom  V.  Stephens,  17  Mich.  518;  Fries   v.  Pennsylvania  R.  R.  Co.,  98 

97  Am.  Dec.  208.  Pa.  St.   142;    Fleming  v.    Reddick,   5 

3  Briscoe  v.  Stephens,  9  Moore,  413;  Gratt.  272;  50  Am.  Dec.  119. 

Mico  V.  Morris,  3  Lev.  234;  Adney  v.  °  Maghee  v.  Collins,  27  Ind.  83. 

Vernon,  3  Lev.  243;  Yon  v.  Baldwin,  «  Cloud  v.  Wiley,  29  Ark.  80. 
76  Ga.  769;  Greeu  v.  Clawson,  5  Del. 


387  MERGER,  OR   FORMER    RECOVERY.  §  219 

destroys  its  effect  as  a  merger.^  So  where  a  judgment  is 
valid  for  some  purposes  only,  as  when,  being  based  upon 
constructive  service  of  process  against  a  non-resident,  its 
enforcement  is  limited  to  specific  property,  and  it  creates 
no  personal  liability  against  the  defendant,  it  constitutes 
no  impediment  to  an  action  to  obtain  a  judgment  enforce- 
able against  him  personally. 

§  219.     Judgment   of  No   Extraterritorial   Effect.  —  A 

judgment,  valid  in  the  jurisdiction  where  it  was  rendered, 
may  have  no  extraterritorial  effect,  as  where  as  to  some 
of  the  defendants  it  was  based  upon  service  of  process 
made  out  of  the  state,  or  upon  process  served  upon  a  co- 
defendant.  If  so,  it  does  not  operate  as  a  merger  in  favor 
of  any  defendant  not  personally  bound  by  it.^  In  the 
case  of  Swift  v.  Stark,  2  Or.  97,  88  Am.  Dec.  463,  the 
court  thought  that  a  judgment  rendered  under  a  statute 
of  one  of  the  states  providing  for  the  entry  of  judgment 
against  two  or  more  joint  debtors  upon  service  of  summons 
on  but  one  merged  the  cause  of  action  against  the  one  not 
served,  though  as  to  him  it  was  admitted  to  constitute  only 
&  prima  facie  evidence  of  indebtedness.  But  this  portion 
of  the  opinion  of  the  court  was  not  necessary  to  the  deter- 
mination of  the  case.  It  does  not  seem  to  be  the  result 
of  any  careful  examination  of  principles  or  adjudged 
cases,  and  is  unquestionably  incorrect.^  In  Michigan, 
such  a  judgment  creates  no  personal  liability  against  the 
unsummoned  defendant.  Neither  is  it  a  merger  of  the 
cause  of  action.  The  conclusion  of  the  court  was  sus- 
tained by  the  propositions,  —  1.  That  neither  the  analogies 
of  the  common  law  nor  the  reasons  on  which  the  rule  is 
based  apply  to  proceedings  under  such  a  statute;    2.  That 

'  Loeb   V.  Willis,    100    N.    Y.    231;  Pa.  St.  396;   Bennett  v.  Cad  well,  70 

Smith  V.  Curtiss,  38  Mich,  393;  post,  Pa.  St.  253;  National  Bank  ?;.  Peabody, 

gee.  219.  55  Vt.  492;  45  Am.  Rep.  632;  Stone  v. 

2  Middlesex  Bankw.  Butman,  29  Me.  Wainwright,  147  Mass.  201. 

19;   McVicker  v.  Beedy,  31  Me.  314;  *  D'Arcy  c.  Ketchum,  11  How.  105; 

I  Am.  Rep.  660;  Rangely  v.  Webster,  Wood  v.  Watkiuson,  17  Conn.  500;  44 

II  N.  H.  299;  Campbell  v.  Steele,  11    Am.  Dec.  562. 


220,  221       MERGER,  OR   FORMER    RECOVERY. 


388 


by  commencing  an  action  against  all  the  obligors  the 
plaintiff  evinced  an  intention  to  pursue  them  jointly; 
3.  That  the  judgment,  though  joint  in  form,  was  effectual 
against  but  one;  4.  That  by  the  statute  the  unsummoned 
defendants  could  be  brought  in  and  made  personally  lia- 
ble aft'er  the  judgment,  while  at ''Common  law  their  liabil- 
ity would  have  been  extinguished.^ 

§  220.  Foreign  Judgments.  —  A  foreign  judgment  is 
received  with  different  degrees  of  regard  in  different  states 
and  among  different  nations.  Wherever  it  is  enforced 
as  a  final  adjudication  between  the  parties,  it  ought  also 
to  be  a  bar  to  another  suit.  In  Louisiana,  a  statute  giv- 
ing to  foreign  judgments  the  same  force  with  those  of 
the  sister  states  was  decided  to  inhibit  any  further  pro- 
ceedings in  the  original  cause  of  action.^  In  England,  a 
foreign  judgment  is,  in  most  respects,  carried  into  effect 
to  the  same  extent  which,  under  the  provisions  of  our 
constitution  and  the  laws  of  Congress,  a  judgment  ren- 
dered in  one  of  these  United  States  would  be  enforced  in 
another.  But  it  is,  nevertheless,  not  regarded  as  a  mat- 
ter of  record,  nor  as  being  of  a  higher  nature  than  the 
original  cause  of  action.  Hence  it  does  not  debar  plain- 
tiff of  the  remedy  which  every  subject  has  of  bringing  his 
action,  and  he  has  his  option  either  to  resort  to  his  origi- 
nal ground  of  action  or  to  bring  assumpsit  on  the  judg- 
ment.' 

§  221.  In  Sister  States.  —  A  judgment  in  any  of  the 
state  or  federal  courts,  upon  valid  personal  service,  being 
regarded  as  a  debt  of  record,  and  as  entitled  to  full  faith 
and  credit,  is  a  merger  in  every  part  of  the  United  States, 

>  Bonesteel  t).  Todd,  9  Mich.  371;  80  H.  Black.  402;   Lyman   v.  Brown,    2 

Am.  Dec.  90.  Curt.  559;  Bonesteel  v.  Todd,  9  Mich. 

2  Jones  V.  Jamison,  15  La.  Ann.  35.  375;  SO  Am.  Dec.  90;  Bank  of  Austra- 

3  Bank  of  Australasia  v.  Harding,  9  lasia  v.  Nias,  16  Q.  B.  717;  Eastern 
Com.  B.  661;  Robertson  v.  Struth,  5  T.  B.  v.  Beebe,  53  Vt.  177;  3S  Am. 
Q.  B.  941;  Smith  v.  Nicholls,  5  Bing.  Rep.  665;  Frazier  v.  Moore,  11  Tex. 
N.  C.  208;  7  Dowl.  282;  Hallw.  Odber,  755;  Wood  v.  Gamble,  11  Cush.  8;  59 
11    East,  118;    Phillips   v.  Hunter,  2  Am.  Dec.  135. 


389  MERGER,  OR   FORMER   RECOVERY.  §  221 

in  the  same  manner  as  in  the  state  where  it  was  rendered.' 
If  actions  are  simultaneously  pending  upon  the  same 
cause  of  action  in  different  states,  a  judgment  in  either 
will  bar  the  further  prosecution  of  the  other.^  This  rule 
is  inflexible,  and  yields  to  no  circumstance  of  hardship 
or  inconvenience.  Its  application  is  not  averted  by  the 
pendency  of  an  appeal,^  nor  by  the  fact  that  the  defendant 
has  property  in  the  state  where  the  action  is  still  pending, 
but  none  in  the  state  where  judgment  has  been  given.* 
A  judgment  rendered  in  one  state  and  sued  upon  in  an- 
other merges  in  the  judgment  recovered  thereon  in  the 
latter  state.® 

We  have  already  stated  that  a  judgment  having  in  other 
respects  no  effect  beyond  the  state  where  it  was  rendered 
is  also  beyond  that  state  no  merger  of  the  original  cause 
of  action.®  But  if  the  judgment  is  against  one  having 
his  domicile  in  the  state  where  it  was  rendered,  it  will,  ac- 
cording to  the  weight  of  the  authorities,  be  given  the  same 
effect  elsewhere  as  would  be  accorded  to  it  in  the  juris- 
diction where  it  was  created.  Hence  though  it  is  based 
upon  constructive  service  of  process,  and  infected  with 
irregularities  in  the  proceedings  by  which  it  was  procured, 
and  is  on  that  account  voidable  but  not  void  in  the  state 
where  it  was  entered,  still,  as  it  is  binding  on  the  parties 
until  avoided  by  some  appropriate  proceeding,  it  will,  in 
the  absence  of  such  proceeding,  be  regarded  even  in  other 
states  as  a  merger  of  the  original  cause  of  action.' 

No  judgment  is  to  be  given  any  greater  effect  elsewhere 

1  Barnes  v.  Gibbs,  31  N.  J.  L.  317;  Vt.  538;   Rogers    v.  Odell,  39  N.  H. 

86  Am.  Dec.  210;  Ault  ;;.  Zehering,  38  452;  Whiting  v.  Burger,  78  Me,  694; 

Ind.  429;  United  States  v.  Dewey,  6  North  Bank  v.   Brown,  50  Me.    214; 

Biss.  501;  Napier  v.  Gidiere,  1  Speers  79  Am.  Dec.  609. 

Eq.  215;  40  Am.  Dec.  613;  Baxley  v.  '^  Bank  of  N.  A.  v.  Wheeler,  28  Conn. 

Linah,    16  Pa.   St.  241;  55  Am.  Dec.  433;  73  Am.  Dec.  683. 

494;  Bank  of   N.    A.    v.  Wheeler,   28  *  Child  v.  Powder  Works,  45  N.  H. 

Conn.  433;  73  Am.  Dec.  683;  Green  v.  547. 

Starr,  52  V^t.  426;  West  F.  R.  R.  Co.  *  Gould  v.  Hayden,  63  Ind.  443. 

V.  Thornton,  12  La.  Ann.  736;  68  Am.  «  See  sec.  219. 

Dec.  778.     Contra,  Beall  v.  Taylor,  2  '  Henderson  v.  Stanrford,  105  Mass. 

<Jratt.  532;  44  Am.  Dec.  398.  504;  7  Am.  Rep.  551. 

'  McGilvray   &   Co.    v.    Avery,    30 


§  222        MERGER,  OR  FORMER  RECOVERY.         390 

than  it  had  in  the  jurisdiction  in  which  it  originated. 
The  consequence  of  a  judgment,  in  respect  to  its  effect  as 
a  merger  of  the  original  demand,  being  dependent  upon 
the  law  of  the  land,  a  modification  or  repeal  of  the  law  of 
the  land  will  modify  or  avert  the  incident  of  merger. 
Thus  if  a  statute,  as  in  Missouri  and  Maryland,  provide 
that  a  joint  contract  shall  be  construed  as  joint  and  sev- 
eral, the  merger  of  such  a  contract  by  a  recovery  thereon 
must  be  treated  as  though  it  had  arisen  out  of  a  joint  and 
several  and  not  out  of  a  joint  contract.* 

§  222.  Merger,  Instances  of.  —  Merger  by  judgment 
may  take  place,  —  1.  When  the  plaintiff"  has  recovered  upon 
an  entire  cause  of  action  against  all  the  parties  liable 
thereon;  2.  When  he  has  recovered  upon  a  cause  of  action 
to  its  full  amount,  but  against  part  only  of  the  persons  so 
liable;  and  3.  When  he  has  recovered  upon  part  only  of  a 
cause  of  action  under  which  he  was  entitled  to  recover  a 
larger  amount.  In  some  instances  the  same  person  has 
given  different  contracts  or  obligations  really  represent- 
ing the  same  liability,  and  the  discharge  of  one  of  which 
operates  as  a  satisfaction  of  the  other.  In  such  cases,  the 
right  exists  to  prosecute  both  contracts  or  obligations  to 
judgment,  and  the  mere  recovery  upon  one  does  not 
merge  the  other.''  Thus  if  the  maker  of  a  promissory 
note  agrees  with  the  holder  to  procure  an  indorser,  the 
recovery  upon  this  agreement,  though  the  damages  are 
assessed  «,t  a  sum  equal  to  the  amount  due  on  the  note, 
will  not  prevent  the  recovery  of  judgment  upon  it  for 
the  same  amount.*  And  generally,  where  a  party  is  enti- 
tled to  cumulative  remedies,  he  may  prosecute  either  to 
judgment  without  losing  his  right  to  pursue  the  other, 
provided  they  are  not  inconsistent.  They  are  inconsis- 
tent when  the  state  of  facts  necessary  to  support  one 
remedy  cannot  co-exist  with  the  facts  necessary  to  sup- 

1  Suydam  v.  Barber,  18  N.  Y.  468;         ^  Lord  v.  Bigelow,  124  Mass.  185. 
75  Am.  Dee.  254;  Thomas  v.  Mohler,         ^  Vanuxem  v.  Burr,  151  Mass.  386; 
25  Md.  36.  21  Am.  St.  Rep.  458. 


891  MERGER,  OR    FORMER   RECOVERY.  §  222 

port  the  other.  Thus  though  a  tort  is  committed,  the 
I)erson  suffering  therefrom  is  often  allowed  to  waive  the 
tort  and  sue  in  assumpsit,  and  may  therefore  recover 
either  in  tort  or  in  assumpsit,  but  may  not  recover  in  both; 
for  his  recovery  in  assumpsit  establishes  a  contract  and 
conclusively  negatives  a  wrong,  while  his  recovery  in  tort 
conclusively  establishes  the  wrong  and  negatives  the  con- 
tract/ A  purchaser  of  property,  which  has  been  falsely 
warranted  to  him  to  be  sound,  may  either  sue  in  tort  for 
the  false  representation,  or  in  contract  for  a  breach  of  the 
warranty,  but  having  recovered  in  tort,  he  cannot  after- 
wards recover  in  contract.^  The  law,  however,  does  not 
favor  a  multiplicity  of  actions,  and  will  generally  not  au- 
thorize a  second  recovery  for  the  same  wrong;  and  such 
recovery  can  be  sustained  only  when  it  is  clear  that  the 
plaintiff  has  by  contract  entitled  himself  to  cumulative 
remedies,  or  they  have  been  unquestionably  given  him  by 
statute.^  Hence  when  the  maker  of  a  note  to  a  national 
bank  in  an  action  thereon  availed  himself  of  the  state  law 
against  usury,  and  recovered  judgment  upon  his  answer 
and  cross-petition,  he  cannot  afterwards  maintain  an  ac- 
tion under  a  statute  of  the  United  States  for  additional 
recovery  upon  the  same  facts  under  which  his  former  re- 
covery was  had.*  A  judgment  against  a  corporation  for 
the  price  of  goods  sold  precludes  an  action  against  it  for 
fraud  in  obtaining  credit  for  the  same  goods.*  A  recov- 
ery of  damages  for  wrongfully  and  maliciously  suing  out 
an  attachment  bars  an  action  on  the  attachment  bond  to 
recover  special  damages  embraced  therein;^  and  a  recov- 
ery in  an  action  of  trespass  for  carrying  away  plaintiff's 

1  Agnew  V.  McElroy,   10  Smedes  &  *  Norton  v.  Doherty,  3  Gray,  372; 

M.  552;  48  Am.   Dec.   772;  Floyd  v.  63  Am.  Dec.  758. 

Browne,    1  Rawle,   121;  18  Am.  Dec.  »  Hite  v.  Long,  6  Rand.  457;  18  Am. 

602;  Walsh  v.  Chesapeake  C.  Co.,  59  Dec.  719. 

Md,   423;  Fields  v.   Bland,   81   N.  Y.  *  BoUong  w.  Schuyler  N.  B.,  26  Neb. 

239;  Cutler  v.  Cox,  2  Blackf.  178;  18  281;  18  Am.  St.  Rep.  781. 

Am.  Dec.  152;  Beall  v.  Pearre,  12  Md.  *  Caylus  v.  New  York  etc.  R.  R.  Co., 

566;  Rendell  v.  School  District,  75  Me.  76  N.  Y.  609. 

358;  Ware  v.  Percival,  61  Me.  393;  14  «  Hall  v.  Forman,  82  Ky.  505. 
Am.  Rep.  472. 


§  222        MERGER,  OR  FORMER  RECOVERY.  892 

wife  is  a  bar  to  an  action  on  the  case  for  enticing  her 
away.^  Though  a  statute  declares  that  when  the  death  of 
a  person  is  caused  by  negligence  his  heirs  or  personal 
representatives  may  maintain  an  action  for  damages,  it 
authorizes  but  one  recovery.  Hence  a  judgment  in  favor 
of  his  personal  representatives  must  include  all  damages 
recoverable  by  his  heirs.^ 

In  the  cases  cited,  the  second  action  was  for  some  wrong 
for  which  a  full  recovery  had  been  had,  the  only  differ- 
ence between  the  two  actions  being  in  their  form.  The 
same  rule  applies  when  the  second  action,  whether  in  the 
same  or  a  different  form,  is  for  something  not  recovered 
for  in  the  first,  but  which  was  an  enforceable  part  of  the 
cause  of  action  there  sued  upon  and  might  have  been 
embraced  in  the  former  recovery  had  it  been  presented 
for  consideration  in  the  first  action.  Hence  the  following 
causes  of  action  have  been  adjudged  to  be  merged  in  for- 
mer recoveries:  For  injuries  to  real  estate,  there  having 
been  a  recovery  for  use  and  occupation  in  an  action  for 
possession;'  for  injuries  done  by  a  city  to  land  in  taking 
it  for  public  use,  there  having  been  a  recovery  against  it 
for  the  taking  of  such  lands;*  for  injuries  committed  by 
a  mortgagee  to  lands,  there  having  been  a  suit  against 
him  to  redeem  the  same  lands,  and  for  damages,  and  an 
accounting  for  rents  and  profits;^  for  damages  for  lands 
disposed  of  by  a  vendor,  there  having  been  a  judgment 
against  him  for  specific  performance  as  to  other  portions 
of  the  lands  which  he  had  agreed  to  sell.^  One  who  has 
a  set-off  or  counterclaim,  and  who  sues  and  recovers  judg- 
ment  thereon,  cannot  afterwards  insist  upon  it  as  a  pay- 
ment to  be  applied  upon  a  note  given  by  him  to  the 
defendant,  because  its  existence  as  a  cause  of  action  at  the 
time  of  recovering  upon  it  is  inconsistent  with  its  being 

1  Gilchrist  v.  Bale,  8  Watts,  355;  37  Mian.  314;  12  Am.  St.  Rep. 
34  Am.  Dec.  4G9.  673. 

»  Munro   v.    Dredging  Co.,   84  Cal.         *  Lewis  ».  Boston,  130  Mass.  339. 
515;  ]8  Am.  St.  Rep.  248.  *  Steen  v.  Maek,  32  S.  C.  286. 

*  Pierre  v.    St.  Paul   etc.  R'y  Co.,         ^  Thompson  v.  Myrick,  24  Mmn.  4. 


393  MERGER,  OR   FORMER    RECOVERY.  §  223 

at  the  same  time  a  payment  on  the  note.'  Where  a  statute 
provided  for  the  presentation  and  establishing  of  claims 
asainst  estates  before  a  court,  it  was  held  that  a  claim  so 
established  merged  into  the  judgment  establishing  it,  and 
would  no  longer  draw  interest  as  a  claim ;^  nor  could  any- 
further  recovery  be  had  upon  it  in  an  independent  action 
by  showing  that  the  presentation  was  for.part  only  of  the 
amount  due.'  If  in  proceedings  to  condemn  land  a 
mortgagee  is  awarded  the  amount  secured  by  his  mort- 
gage, the  indebtedness  is  merged  in  the  judgment  of 
condemnation,  and  he  can  maintain  no  further  proceed- 
ing to  obtain  his  debt,  except  upon  the  award.*  A  stat- 
ute in  Ohio  provided  that  a  mortgagee  might  prosecute 
a  scire  facias  and  obtain  a  judgment  for  his  debt,  with 
execution  against  the  mortgaged  premises  only.  After 
the  mortgagee  proceeded  under  this  statute,  his  debt  was 
merged,  so  that  he  could  have  no  further  action  upon  it.* 

§  223.  Exceptions.  —  In  order,  however,  to  create  a 
merger,  the  plaintiff  must  have  had  an  opportunity  to  re- 
cover his  entire  demand.  A  plea  of  judgment  recovered 
will  not  be  supported,  unless  it  appears  that  the  precise 
thing  in  controversy  in  the  second  suit  could  have  been 
recovered  in  the  first.  Thus  if  plaintiff,  proceeding  in  a 
court  of  admiralty,  obtains  a  judgment  of  condemnation 
against  a  vessel  for  a  collision,  and  has  her  sold,  he  is 
not  precluded  from  proceeding  to  recover  such  further 
damages  as  he  may  have  suffered  from  the  collision,  in 
excess  of  the  value  of  the  vessel  condemned,  because  he 
could  not  have  recovered  this  excess  in  the  proceeding 
against  the  vessel.*  It  has  also  been  decided  that  a 
judgment  obtained  against  a  steamboat  is  not  a  bar,  until 
satisfied,  to  an  action  against  the  owners  upon  the  same 

»  Artltman  v.  Gamble.  88  Ala.  424.  «  Nelson  t;.  Crouch,  15  Com.  B.,  N.  S.. 

«  Mitchell  V.  Mayo,  16  111.  8.3.  99;  and  a  judgment  agamst  a  master 

*  Gibson  v.  Hale,  57  Tex.  405.  for  supplies  does  not  bar  the  mamte- 

*  Sheperd   v.   Mayor   of  N.    Y.,    13  nance  of  suit  in  admiralty  to  enforce 
How.  Pr.  286.  a  lien  therefor:  The  Brothers  Apap,  34 

»  Reedy  v.  Burgert,  1  Ohio,  157.  Fed.  Rep.  352. 


§  223  MERGER,  OR    FORMER    RECOVERY.  894 

liability,  on  the  ground  that  the  remedy  against  the  boat 
is  cumulative.'  The  courts  in  Michigan  refused  to  apply 
the  law  of  merger  to  a  case  where,  though  no  legal  im- 
pediment existed  to  a  full  and  adequate  recovery  in  the 
first  suit,  such  recovery  was  prevented  by  the  fact  that  the 
defendant,  being  the  agent  of  the  plaintiff,  had,  until  sub- 
sequent to  the  rendition  of  the  first  judgment  against  him, 
fraudulently  concealed  from  plaintiff  the  existence  of  cer- 
tain items  of  indebtedness,  which,  had  they  not  been  so 
concealed,  would  have  been  included  in  the  former  suit.^ 
A  judgment  for  a  debt  does  not  prevent  the  plaintiff  from 
subsequently  maintaining  an  action  to  bar  the  defendant's 
equity  of  redemption  in  the  lands  on  which  a  mortgage 
bad  been  given  to  secure  the  same  debt;*  and  if  two  dis- 
tinct judgments  have  been  entered  on  the  same  cause  of 
action,  the  merger  of  one  of  those  judgments  in  a  statu- 
tory judgment  does  not  affect  the  other.*  Other  cases 
may  be  cited  in  which  exceptions  have  been  recognized, 
but  on  examination  they  will,  we  think,  be  found  to  be 
more  correctly  regarded  as  instances  in  which  courts 
have,  from  considerations  of  hardship,  refused  to  apply 
the  law  of  merger,  than  as  proper  exceptions  to  it.  Thus 
recoveries  have  been  sustained  for  causes  of  action  or 
parts  of  causes  of  action  not  included  in  the  former 
actions  on  account  of  the  mistake  or  ignorance  of  the 
plaintiff,'  but  exceptions  of  this  kind  are  not  sustainable. 
Neither  the  mistake  of  the  parties  nor  of  the  court  can 
justify  the  denial  of  the  effect  of  a  former  judgment  as  a 
merger.^  Where  four  separate  actions  were  brought  at 
the  same  time  for  four  monthly  installments  of  rent  due 

»  Toby  V.  Brown,  11  Ark.  308.  *  Moran  v.  Plankington,  64  Mo.  337 

'Johnson  v.  Provincial  Ins.  Co.,  12  Ewing  v.  McNairy,  20  Ohio  St.  315 

Mich.  216;  86  Am.  Dec.  49.     See  also  Stockton  v.  Ford,  18  How.  418;  Keo 

Perrall   v.    Bradford,    2   Fla.  508;    50  kuk  Co.  v.  Alexander,  21  Iowa,  377 

Am.  Dec.  293.  Wickersham  v.  Whedon,  33  Mo.  561 

'  Harris  w.  Vaughn,  2  Tenn.  Ch.  483.  Baker  v.  Baker,  28  N.    J.  L.   13;   75 

*  National   Bank    of    Monticello   v.  Am.    Dec.    243;    Cooksey   v.    Kansas 

Bryant,  13  Bush,  419.  City   etc.    R.    R.    Co.,    74   Mo.    477; 

^  Stevens    v.    Damon,    29   Vt.    521;  Winslow  v.   Stokes,  3  Jones,  285;  67 

Kane  v.  Morehouse,  46  Conn.  300.  Am.  Dec.  242. 


395         MERGER,  OR  FORMER  RECOVERY.   §§  224,  225 

upon  a  lease,  and  the  defendant  made  no  objection  to  this 
severance  of  the  causes  of  action  until  after  judgment  had 
been  recovered  upon  one  of  them,  it  was  held  that  he  had 
waived  his  right  to  insist  that  that  judgment  merged  the 
demands  sued  for  in  the  other  actions.*  So  when  actions 
were  brought  under  circumstances  somewhat  similar,  and 
the  court  had  erroneously  determined  that  a  separate 
action  could  be  maintained  on  each  installment,  though 
others  were  due,  the  judgment  was  held  to  estop  the  de- 
fendant from  afterwards  insisting  that  the  contract  out  of 
which  the  rights  of  action  arose  was  such  as  to  require 
the  plaintiff  to  sue  for  all  the  installments  due  thereunder 
at  the  commencement  of  the  suit.^ 

§  224.  Pendente  Lite.  —  No  demand  included  in  the 
plaintiff's  complaint,  or  in  the  defendant's  set-off  or 
counterclaim,  can  be  allowed  if  at  any  time  before  its  al- 
lowance, but  during  the  pendency  of  the  action,  it  has  been 
taken  into  account  in  forming  a  judgment  in  another 
action  between  the  same  parties,*  whether  the  action  in 
which  the  judgment  was  entered  was  commenced  before 
or  after  the  pending  suit.* 

§  225.  Criminal  Prosecutions  and  Convictions.  —  The 
doctrine  of  the  earlier  authorities  was,  that  all  civil  rem- 
edies in  favor  of  a  party  injured  by  a  felony  were  merged 
in  the  higher  offense  against  society  and  public  justice, 
or,  at  least,  that  such  remedies  were  suspended,  and  could 
not  be  pursued  until  after  the  trial  and  conviction  of  the 
offender.^  This  doctrine  is  obsolete;  and  the  civil  rem- 
edy may  be  pursued  either  before  or  after  the  prosecution 

1  Fox  V.  Althorp,  40  Ohio  St.  322.  *  Schuler  v.  Israel,  125  U.  S.  506; 

»Lorillarcl  v.  Clyde,  122  N.  Y.  41;  Bank  of  U.  S.  v.  Merchants'  Bank,  7 

19  Am.  St.  Rep.  470.  Gill,  415;  Estes  v.  Chicago,  72  Iowa, 

» Davis    V.    Bedsole,    60    Ala.    362;  235. 

Andrews  v.  Varicll.  46  N.  H.  17;  Mo-  *  Foster  v.  Tucker,  3  Greenl.  458; 

Gilvray  v.  Avery,  30  Vt.  538;  Bank  of  14  Am.    Dec.    243,    and  note;  Boston 

North  America  v.  Wheeler,  28  Coim.  R.  R.  Co.  v.  Dana,  1  Gray,  83,  97. 
433;  73  Am.  Dec.  683. 


§  225  MERGER,  OR   FORMER    RECOVERY,  896 

and  conviction  of  the  criminal.^  The  doctrine  also  for- 
merly prevailed  that  the  conviction  of  certain  felonies 
was  a  bar  to  any  prosecution  for  any  other  felony,  whether 
committed  subsequently  or  antecedently  to  the  conviction. 
The  result  of  a  conviction  for  most  felonies  was,  that  the 
offender  became  by  operation  of  law  "  in  a  state  of  attain- 
der." It  was  early  held  that  a  person  thus  attainted 
might  plead  the  same  in  bar  to  a  subsequent  prosecution 
for  any  other  felony,  for  by  his  first  attaint  his  posses- 
sions were  forfeited,  his  blood  corrupted,  and  he  became 
dead  in  law;  therefore  any  further  conviction  would  be 
fruitless.  This  plea  was  styled  the  plea  of  autrefois  attaint, 
or  former  attainder.^  The  early  common-law  rule  has 
been  recognized  to  a  very  limited  extent  in  this  country;' 
but  is  doubtless  now  obsolete  in  America,*  and  abolished 
by  statute  in  England." 

The  conviction  of  an  offense,  like  the  recovery  of  judg- 
ment in  a  civil  action,  is  a  bar  to  any  further  prosecution 
based  on  the  same  cause  of  complaint.  The  question 
often  arises  whether  the  offense  of  which  one  is  accused 
is  not  a  part  of  an  offense  of  which  he  has  been  already 
convicted,  and  if  so,  whether  the  whole  crime  is  not 
merged  in  the  former  conviction,  for  the  same  offense 
cannot  be  split  into  parts  and  made  to  sustain  two  or 
more  convictions  of  the  same  person.^  Thus  one  who  by 
the  same  act  passed  four  forged  checks  to  the  teller  of  a 
bank  was  adjudged  to  be  guilty  of  but  one  offense,  and 
his  conviction  of  uttering  one  of  the  checks  was  held  to 

1  1  Hilliard  on  Torts,  59,  60;  note  to  ^  Stats.  7  &  8  Geo.  IV.,  c.  28,  sec.  4. 

Foster   v.  Tucker,  3   Greenl.  458,   14  The  rule  was   in   active  operation  in 

Am.    Dec.    243,    and    the   authorities  England    at  a    comparatively   recent 

there  cited;    Pettingill   v.   Kideout,   6  period:  Rex  v.  Birhett,  1  Russ.  &  R. 

N.  H.  454;  25  Am.  Dec.  473.  C,  C.  288;  Rex  v.  Jennings,  1  Russ.  & 

*  See  note  to  Crensliaw  v.  State,   17  R.  C.  C.  388. 

Am.    Dec.    791,    and    the   authorities  *  Rex  v.  Britton,  1  Moody  &  R.  297; 

there  cited.  Francisco  v.  State,  24  N.    J.    L.    30; 

3  Crenshaw  v.  State,  1  Mart.  &  Y.  Fishery.  Comm.,  1  Bush,  211;  89  Am. 

122-  17  Am.  Dec.  788.  Dec.    620;    Moore   v.    State,    71    Ala. 

♦Hawkins  v.  State,  1  Port.  475;  27  307;  State  v.  Cameron,  3   Heisk.  78; 

Am.  Dec.  641 ;  States.  McCarty,  1  Bay,  Holt  v.  State,  38  Ga.  187. 
334;  State  v.  Comm'rs,  2  Murph.  371. 


397  MERGER,  OR   FORMER    RECOVERY.  §  225 

preclude  liis  subsequent  prosecution  for  uttering  tlie 
others.*  Tiie  larceny  of  several  articles  at  one  time,  and 
by  one  act,  though  belonging  to  different  persons,  is  but 
one  offense.  The  state  cannot  split  this  offense  into 
parts,  and  prosecute  it  by  fractions.  A  conviction  of 
any  part  may  be  pleaded  in  bar  to  a  prosecution  for  any 
other  part.''  Hence  a  conviction  for  having  forged  bank 
bills  and  counterfeit  plates  in  the  defendant's  possession, 
with  the  intent  to  pass  or  use  them,  bars  a  subsequent 
prosecution  based  upon  other  bank  bills  or  plates  in  his 
possession  at  the  same  time.*  When  the  offense  charged 
necessarily  includes  a  lesser  crime,  of  which  the  jury  may, 
under  the  indictment,  find  the  defendant  guilty,  his  con- 
viction of  the  greater  crime  bars  his  further  prosecution 
for  the  lesser.*  On  the  other  hand,  if  the  defendant  has 
committed  a  lesser  offense,  of  which  he  cannot  be  con- 
victed under  the  indictment  against  him,  then  his  con- 
viction of  the  lesser  offense  cannot  be  regarded  as  included 
in  his  conviction  of  the  offense  for  which  he  is  indicted, 
and  a  second  prosecution  for  the  lesser  offense  is  sustain- 
able.5 

If  a  defendant  is  charged  with  a  crime  in  an  indictment 
under  which  he  may  be  convicted  of  a  lesser  crime,  his 
conviction  of  such  lesser  crime  is  tantamount  to  his 
acquittal  of  the  greater,  and  of  course  bars  any  further 
prosecution  therefor.^     But  suppose  the  conviction  of  the 

1  State  V.  Egglesht,  41  Iowa,  574;  State,  40  Tex.  36;  Dunn  v.  State,  70 
20  Am.  E.ep.  612.  lu'l-  47;  State  v.  Pitts,  57  Mo.  85. 

2  State  V.  Cameron,  40  Vt.  555;  Lor-  *  Mumford  v.  State,  39  Miss.  558; 
ton  V.  State,  7  Mo.  55;  37  Am.  Dec.  Moore  v.  State,  59  Miss.  25;  State 
179;  State  v.  Nelson,  29  Me.  329;  v.  Wightman,  26  Mo.  515;  Rcgiua  v. 
People  V.  Van  Kuren,  5  Park.  Cr.  Smith,  34  U.  C.  Q.  B.  552;  iJedien  v. 
66-  State  V.  Williams,  10  Humph.  101;  People,  22  N.  Y.  178;  State  v.  Elder, 
State  V.  Morphine,  37  Mo.  373;  Jack-  65  Ind.  282;  32  Am.  Rep.  69;  Dickey 
son  V.  State,  14  Ind.  327.  Contra,  v.  Comm.,  17  Pa.  St.  126;  55  Am. 
Regina  v.  Brettel,   1    Car.  &   M.  609;  Dec.  542. 

State  V.  Thurston,  2  McMull.  382.  «  State  v.  Martin,  30  Wis.  216;   11 

*  State  V.  Benham,  7  Conn.  414;  Am.  Rep.  567;  Swinney  v.  State,  8 
People  V  Van  Keutzen,  5  Park.  Cr.  Snjedes  &  M.  576;  CanipUell  v.  State, 
66;  State w.  Egglesht,  41  Iowa,  574;  20  9  Yerg.  .333;  30  Am.  Due.  417;  State 
Am.  Rep.  612;  United  States  d.  Miner,  v.  Hornsby,  8  Rob.  (La.)  583;  41  Am. 
11  Blatch.  511.  Dec.  314;  State  v.  Norvell,  2  Yerg.  24; 

*  Sanders  v.  State,  55  Ala.  42;  State  24  Am.  Dec.  458;  People  v.  Knapp, 
V.  Staudifer,  5  Port.  523;  Thomas  v.  26  Mich.  112. 


§  225  MERGER,  OR    FORMER    RECOVERY.  398 

lesser  offense  to  be  upon  an  indictment  not  charging  any 
higher  offense.  Here  is  no  acquittal  of  a  higher  offense, 
and  yet  it  would  be  unjust  either  to  convict  and  punish 
defendant  for  an  offense  which  had  been  at  least  partially 
punished  in  the  sentence  imposed  for  the  lesser  offense, 
which  was  a  part  of  it,  and  perhaps  equally  unjust  to  per- 
mit the  defendant  to  atone  for  the  higher  offense  by 
suffering  the  punishment  appropriate  to  the  lesser.  The 
courts  have  leaned  to  the  side  of  mercy  by  determining 
that  if  the  state  prosecutes  to  conviction  and  sentence  for 
a  lesser  offense  it  cannot  thereafter  convict  and  punish 
for  a  higher  crime  of  which  it  was  a  part.^  Thus  where 
the  two  prosecutions  relate  to  the  same  act,  a  conviction 
for  an  attempt  to  commit  rape  bars  a  prosecution  for 
rape;''  of  assault  and  battery,  a  prosecution  of  assault 
and  battery  with  intent  to  commit  murder;^  of  assault,  a 
prosecution  for  battery;*  of  petty  larceny,  a  prosecution  for 
grand  larceny;^  of  arson,  a  prosecution  for  murder,  where 
the  penalty  imposed  for  the  two  crimes  is  the  same;^  of 
burglary,  a  prosecution  for  robberyJ  An  exception  to 
this  rule  obtains  in  the  event  of  the  death  of  an  injured 
person  after  the  conviction  of  his  assailant  of  assault  and 
battery,  in  which  event  a  prosecution  and  conviction  for 
murder  or  manslaughter  may  be  permitted.' 

1  State  V.  Standifer,  5  Port.  523;  Thomas  v.  State,  40  Tex.  36;  Severin 
State  V.  Wister,  (52  J\Io.  592;  State  v.  v.  People,  37  111.  414;  Comm.  v.  Cur- 
Sly,  4  Or.  277;  Comm.  v.  Hawkins,  11  tis.  11  Pick.  134;  State  v.  Warner,  14 
Bush,  603;   State  v.  Chaffin,  2  Swan,  Ind,  572. 

492;   Comm.   v.  Miller,  5   Dana,  320;  ^  State  v.    Shepherd,    7    Conn.    54; 

State  V.  Lewis,  2  Hawks,  98;  1 1  Am.  State  v.  Smith,  43  Vt.  324. 

Dec.  741;  Roberts  v.  State,  14  Ga.  8;  *  Moore  w.  State,  71  Ala.  307;  Regina 

58  Am.  Dec.  528;  People  v.  Smith,  57  v.  Walker,  2  Moody  &  R.  446. 

Barb.  46;  Simco  v.  State,  9  Tex.  App.  *  State  v.  Chaffin,  2  Swan,  493. 

349;  State  v.  Smith,  43  Vt.  324;  State  ^  State   v.    Murray,    55    Iowa,    530; 

V.  Cooper,  13  N.  J.  L.  371;    25   Am.  State  v.  Gleason,  56  Iowa,  203. 

Dec.  490;  Wilcox  v.  State,  6  Lea,  571;  *  State  v.  Cooper,  13  N,  J.  L.  361; 

40  Am.  Rep.  53;  Comm.  v.  Bright,  78  25  Am.  Dec.  496. 

Ky.  238;  State  v.  Shepherd,  7  Conn.  54;  '  Roberts  v.  State,  14  Ga.  8;  58  Am, 

Moore  v.  State,  71  Ala.  307;  Murphy  v.  Dec.  528. 

Comm.,  23  Gratt.  960;   State  v.  Mur-  «  State  v.  Littlefield,  70  Me.  452;  35 

ray,    55   Iowa,    530;   note  to  Roberts  Am.  Rep.  335;  Comm.  v.  Evans,  10] 

V.  State,  14  Ga.  8;   58  Am.  Dec.  528.  Mass.  25;   Regina  v.  Morris,  L.  R.  1 

Contra,  State  v.  Stewart,  11   Or.  62;  0.  C.  90. 


399        MERGER,  OR  FORMER  RECOVERY.   §§  225  a,  226 

§  225  a.  Principal  and  Agent  may  both  be  severally 
liable  on  the  same  obligation,  or  as  the  result  of  the  same 
transaction.  Where  this  is  the  case,  a  judgment  against 
the  agent  seems  to  preclude  the  obligee  from  proceeding 
against  the  principal.  Hence  the  recovery  on  a  bill  of 
lading  against  the  master  of  a  ship  is  a  good  defense  to 
an  action  against  the  owner  on  the  same  bill  of  lading, 
though  satisfaction  has  not  been  obtained.^  This  is  be- 
cause the  suing  of  the  master  to  judgment  is  an  election 
to  pursue  him,  rather  than  the  owner,  and  makes  the  lat- 
ter subject  to  a  recovery  against  him  by  the  master,  and. 
he  ought  not  at  the  same  time  to  be  liable  to  separate 
actions  in  favor  of  different  persons  resting  upon  the  same 
cause. 

§  226.  Principal  and  Surety.  — In  Vermont,  a  judgment 
against  a  principal  and  his  surety  merges  not  only  the 
cause  of  action,  but,  as  between  the  plaintiff  and  the  de- 
fendant, the  relation  of  principal  and  surety;  so  that,  at 
law,  the  surety  cannot  avoid  the  judgment  by  proving 
that  since  its  entry  some  favor  or  preference  has  been 
given  the  principal,  sufficient,  if  given  before  the  judg- 
ment, to  relieve  the  surety  from  further  responsibility.'* 
But  the  preponderance  of  the  authorities  is  decidedly 
against  the  Vermont  cases,  and  in  favor  of  the  rule  that 
the  judgment  creditor  is  still  bound  to  give  no  preference 
to  the  principal  debtor,  and  to  do  no  act  by  which  the  lia- 
bility of  the  surety  can  be  increased;  and  that  those  acts 
which  are  sufficient  to  discharge  the  surety  before  judg- 
ment will  entitle  him  to  a  release  afterward,  and  will 
constitute  a  complete  defense  to  an  action  at  law  on  the 
judgment.' 

*  Priestley  v.  Fernie,  3  Hurl.  &  C.  monwealth  v.  Miller's  Adm'r,  8  Serg. 

977;    II   Jur.,   N.  S.,  813;    13  Week.  &   R.    452;    La   Farge  v.   Herter,    11 

Rep.  1089.  Barb.  159;  Commonwealth  v.  Haas,  16 

2  Marshall   v.    Aiken,    25    Vt.    332;  Serg.  &  R.  252;  Baird  v.  Rice,  1  Call, 

Dunham  v.  Downer,  31  Vt.  249.  18;    1    Am.    Dec.    497;    Carpenter  v. 

«  Rice  V,  Morton,  19  Mo.  263;  Com-  King,  9  Met.  511;  43  Am.  Dec.  405. 


§§  227,  227  a    merger,  or  former  recovery.  400 

§  227.  Co-plaintiffs  or  Co-defendants.  —  The  merger  of 
the  cause  of  action  has  no  effect  upon  the  liabilities  of  the 
co-plaintiffs  or  the  co-defendants  between  each  other.* 
Those  liabilities  are  not  in  issue  in  the  case,  and  therefore 
are  not  affected  by  the  final  determination  of  the  action. 
In  extinguishing  a  demand,  a  judgment  has  no  greater 
effect  than  mere  payment.  It  leaves  the  liability  of  other 
parties  to  the  defendant  unaffected.  A  recovery  upon  a 
note  against  the  maker  and  indorsers  does  not  so  merge 
the  note  as  to  prevent  the  indorsers  from  paying  the 
judgment,  receiving  the  note,  and  maintaining  action  on 
it  against  the  maker.'^  So  a  judgment  against  co-defend- 
ants creates  no  liability  between  them,  if  none  before 
existed.  Thus  tort-feasors,  where  the  injury  committed  is 
malum  in  se,  have  no  right  of  contribution  between  each 
other.  Hence  a  judgment  recovered  against  them  for 
such  torty  and  satisfied  by  one  of  their  number,  is  wholly 
incompetent  to  establish  a  claim  against  the  others.^ 

§  227  a.  Suits  on  Notes  and  Bills.  —  The  recovery 
upon  a  promissory  note,  though  a  merger  of  the  cause  of 
action  as  between  the  parties  to  the  suit,  is  not  necessarily 
a  complete  merger  of  all  other  causes  of  action  which  may 
arise  out  of  the  note.  Thus  the  fact  that  an  indorsee  has 
recovered  judgment  against  an  acceptor  does  not  j^revent 
a  drawer  who  has  taken  up  the  note  from  recovering  an- 
other judgment  against  the  same  acceptor.'*  So  it  is  no 
defense  to  an  action  by  an  indorsee  against  the  maker  of 
a  note  that  a  prior  indorsee,  while  the  holder,  and  before 
the  plaintiff  took  it,  recovered  judgment  against  defend- 
ant and  the  payee,^  nor  to  an  action  against  the  maker 
that  there  has  been  a  recovery  against  the  indorsers.* 
But  if  judgment  is   recovered   against  one  of  the  joint 

■  Contra,  Kent  v.  Kent,  82  Va.  205.  *  McLennan  v.  McMonies,  23  U.  C. 

■^  Kelsey  v.  Bradbury,  21  Barb.  531;  Q.  B.  115;  Tarleton  v.  Allhusen,  2  Ad. 

Corey  v.  White,  3  Barb.  12.  &  E.  32. 

3  Percy  v.  Clary,  32  Md.  245.  «  Brooklyn   C.  &   N.    R.   R.   Co.  v. 

*  Macdouald  v.  Bovington,  4  Term  National  Bank,  102  U.  S.  14. 
Rep.  825. 


401  MERGER,  OR  FORMER  RECOVERY.        §  228 

makers,  this  is  a  discharge  of  all  the  other  makers  from 
all  suits  by  the  same  plaintiff  and  all  persons  in  privity 
with  him.^  If  one  indebted  upon  a  single  cause  of  action 
upon  which  he  can  be  subjected  to  but  one  judgment 
executes  in  payment  thereof  several  promissory  notes,  he 
thereby  creates  distinct  causes  of  action  susceptible  of 
being  the  foundation  of  as  many  judgments  as  there  are 
notes,  and  he  cannot  successfully  claim  that  a  judgment 
upon  one  of  the  notes  precludes  a  subsequent  recovery  on 
others  which  were  due  when  the  first  action  was  brought.^ 

§  228.  Judgments  against  Warrantors,  Garnishees, 
and  Stock  Companies.  —  Judgment  against  the  original 
warrantor  in  favor  of  the  last  grantee,  with  satisfaction, 
will  bar  any  action  by  the  intermediate  grantees.*  In 
this  case  it  is  evident  that  the  demand,  which  consists  of 
the  contract  of  warranty  and  the  breach  thereof,  has 
passed  to  the  last  grantee,  and  is  drowned  in  the  judg- 
ment. Taking  judgment  against  a  garnishee  does  not 
merge  the  demand  against  the  principal.  Judgments 
may  be  recovered  against  both,  and  proceeded  upon  until 
one  is  satisfied.*  Judgment  against  a  joint-stock  company 
merges  the  original  liability.  Redress  against  the  stock- 
holders must,  in  New  York,  be  procured  by  an  action 
against  them  on  the  judgment.^  A  difi'erent  opinion  is 
stated  by  the  court  in  Young  v.  Rosenbaum,  39  Cal.  646. 
Rhodes,  C.  J.,  there  says  that  the  liability  of  the  stock- 
holders is  not  merged,  extinguished,  nor  suspended  by  a 
judgment  against  the  corporation.  The  remarks  of  the 
court,  both  in  the  New  York  and  the  California  case,  so 
far  as  applicable  to  this  subject,  are  mere  dicta,  arising 

1  Barnett  w.  Juday,  38  Ind.  86;  Hal-  210;  Meriam  v.  Rimdlett,  13  Pick, 
lowell  V.  MacDonell,  8  U.  C.  C.  P.  511;  Farmer  w.  Simpson,  G  Tex.  303. 
2].  Covtrir,    Sessions   v.    Sessions,    1    Fla. 

2  Nathans  v.  Hope,  77  N.  Y.  420.  233;  46  Am.  Dec.  339;  McAllister  v. 

*  Brady  v.  Spurck,  27  111.  481.  Brooks,  22  Me.  80;  38  Am.  Dec.  282; 

*  Price  V.  Higgins,  1  Litt.  273;  Cook  Noble  v.  Merrill,  48  Me.  140;  Coburn 
V.  Field,  3  AlaT'53;  36  Am.  Dec.  436;  v.  Currens,  1  Bush,  242;  King  v. 
Brown  v.  SomerviUe,  8  Md.  444;  Ham-  Vance,  46  Ind.  246. 

mett  V.  Morris,  55  Ga.  644;  Lowry  v.         *  Witherhead    v.    Allen,    28    Barb. 
Lumberman's    Bank,    2   Watts   &   S.     661. 
JUDG.  I.  — 26 


§  229        MERGEE,  OR  FORMER  RECOVERY.  402 

from  the  consideration  of  hypothetical  facts,  and  not 
of  the  issues  before  the  court.  It  is  a  little  remarkable 
that  the  premises  assumed  by  each  court  were  identical, 
while  the  results  attained  were  diametrical.  Both  judges 
assumed  that  the  liability  of  the  stockholder  was  that  of  a 
principal  debtor,  and  not  that  of  a  surety.  But  one  court 
treated  the  case  as  one  in  which  plaintiff  had  two  distinct 
causes  of  action  (one  against  the  corporation  and  one 
against  its  stockholders),  either  of  which  could  be  prose- 
cuted to  judgm.ent  without  affecting  the  other;  while  in 
the  other  court  the  liability  was  considered  like  that  of  a 
partnership^ in  which  a  recovery  against  the  firm  makes 
each  partner  responsible  under  the  judgment,  and  releases 
him  from  the  original  debt. 

§229.  Collateral  Securities. — The  prosecution  to 
judgment  of  any  chose  in  action,  given  as  collateral 
security,  in  no  wise  merges  or  discharges  the  original 
debt.  As  the  debt  continued  in  full  force  independent  of 
the  security,  so  it  remains  unaffected  by  the  judgment, 
which  is  the  same  security  in  another  and  higher  form.* 
No  other  cause  of  action  than  the  one  sued  upon  can 
merge  in  the  judgment.  Hence  the  successful  prosecution 
of  an  action  on  the  original  debt  will  not  impair  the  right 
to  proceed  upon  the  security.''  A  judgment  against  an  ad- 
ministrator does  not  merge  his  liability  so  as  to  prevent 
the  prosecution  of  an  action  against  the  sureties  on  his 
bond;*  and  it  is  said  that  a  judgment  in  assumpsit  for 
money  loaned  is  not  a  bar  to  an  action  on  the  case  for 
deceit  and  false  and  fraudulent  representations,  made  to 

1  Drake   v.    Mitchell,    3   East,    251;  Butler  ».  Miller,  1  N.  Y.  496;  Steele  ?'. 

Watson  V.  Owens,  1  Rich.  Ill;  Davis  Lord,  28  Hun,  127;  Harris  v.  Alcock, 

V.  Anable,  2  Hill,  339;  Bank  of  Che-  10  Gill  &   J.  226;   32  Am.   Dec.   158; 

nango  v.  Hyde,  4  Cow.  567;  Fairchild  Howell  v.  McCracken,  87  N.  C.   399; 

V.  Holly,  10  Conn.  475;  Butler  v.  Mil-  Butterton  v.  Roope,  3  Lea,  215;  31  Am. 

kr,   5    Denio,    159;   United   States   v.  Rep,  633;  V^^hite  v.  Smith,  33  Pa.  St. 

Hoyt,    1    Blatchf.    326;    Butterton   v.  186;  75  Am.  Dec.  589;  McCullough  v. 

Roope,  3  Lea,  215;  31  Am.  Rep.  633;  Hellman,    8   Or.    191;   Burnheimer  v. 

Day  V.  Leal,  14  Johns.  404;  Chipman  Hart,    27    Iowa,    19;    99    Am.    Dec. 

t).  Martin,  13  Johns.  240.  641. 

•^  Fisher   v.    Fisher,    98   Mass.    303;  «  McLean  v.  McLean,  90  N.  C.  530. 


403  MERGER,  OR   FORMER   RECOVERY.  §  230 

procure  the  loan,  though  the  value  of  the  former  judg- 
ment must  be  considered  in  mitigation  of  damages.^ 
The  cases  of  Benson  v.  Paine,  9  Abb.  Pr.  28,  17  How. 
*  Pr.  407,  Peters  v.  Sanford,  1  Denio,  224,  and  Averhill  v. 
Loucks,  6  Barb.  19,  present  singular  examples  of  violations 
of  the  unquestioned  principle  of  law  that  the  merger  of  a 
security  does  not  merge  the  original  debt.  In  the  two 
cases  first  named,  the  plaintiff  had  taken  the  note  of  one 
partner  to  secure  a  debt  due  from  the  firm.  In  the  last- 
named  case  the  plaintiff  took  a  bond  and  Avarrant  of  at- 
torney from  one  of  the  partners  for  a  similar  purpose. 
Judgments  having  been  entered,  in  the  several  cases  on 
the  notes  and  also  on  the  bond,  the  question  arose 
whether  an  action  could,  be  maintained  against  the  re- 
spective copartnerships  on  the  original  indebtedness.  In 
each  case  it  was  held  that  the  recovery  against  one  part- 
ner on  the  collateral  security  given  by  him  had  merged 
the  demand  against  the  copartnership.  But  from  the 
opinion  of  the  court  in  each  case  the  conclusion  is  irre- 
sistible that  no  question  was  supposed  to  be  involved, 
except  the  effect  of  the  entry  of  a  judgment  against  a 
partner  for  a  partnership  debt.  In  each  of  the  three 
cases,  however,  a  judgment  upon  a  collateral  security  did 
in  fact  bar  an  action  for  the  original  debt;  but  neither 
case  is  authority  to  overturn  the  proposition  that  the 
merging  of  a  mere  security  never  involves  the  real  in- 
debtedness. We  cannot  but  wonder  that  three  cases 
involving  the  same  question  should  be  determined  in  the 
same  state  without  the  attention  of  either  court  being 
directed  to  a  rule  of  law  so  familiar  to  the  profession  and 
so  decisive  of  the  matters  under  consideration. 

§  230.  Foreclosure  of  Security.  —  The  foreclosing  of  a 
mortgage  held  as  security,  in  a  suit  in  the  name  of  the 
assignor  and  the  assignee,  does  not  change  the  relation  of 
the  plaintiffs  to  each  other.     If  the  assignee  purchase  the 

»  Whittier  v.  Collins,  15  R.  I.  00;  2  Am,  St.  Rep.  879. 


§   231  MERGER,  OR    FORMER    RECOVERY.  404 

mortgaged  premises  at  a  sale  under  the  decree,  he  will 
hold  them  subject  to  redemption  on  the  same  terms  as 
the  mortgage  could  have  been  redeemed  upon  prior  to  the 
suit.'  A  judgment  or  decree  of  foreclosure  does  not  merge 
the  mortgage  debt  so  as  to  impair  the  lien  of  the  mort- 
gage;^ nor  will  a  proceeding  to  charge  property  with  the 
j)ayment  of  a  debt  or  judgment  amount  to  a  merger 
thereof;^  nor  the  recovery  of  judgment  for  a  debt  preclude 
subsequent  proceedings  to  enforce  a  mortgage  or  other 
lien  given  to  secure  its  payment.*  Where  parties  sever- 
ally liable  on  notes  secured  by  a  mortgage  were  all  sued 
in  an  action  to  foreclose  it,  and  judgment  taken  for  such 
foreclosure  against  all,  and  a  personal  judgment  against 
one  only,  it  was  held  that  the  others  could  not  be  sub- 
jected to  any  further  judgment.^ 

§  231.  Joint  Obligors. — Whenever  two  or  more  per- 
sons are  jointly  liable,  so  that  if  an  action  is  commenced 
against  any  less  than  the  whole  number  the  non-joinder 
of  the  others  will  sustain  a  plea  in  abatement,  a  judgment 
against  any  of  those  so  jointly  bound  merges  the  entire 
cause  of  action.  The  cause  of  action  being  joint,  the 
plaintiff  cannot  be  allowed  to  sever  it  against  the  objec- 
tion of  any  of  the  defendants.  By  taking  judgment 
against  one,  he  merges  the  cause  of  action  as  to  that  one, 
and  puts  it  out  of  his  power  to  maintain  any  further  suit, 
either  against  the  others  severally  or  against  all  com- 
bined.® A  different  conclusion  was  announced  by  Chief 
Justice  Marshall  in  the  case  of  Sheehy  v.  Mandeville,  6 
Cranch,  253.     He  there  held  that  a  judgment  against  one 

1  Hoyt  V.  Martense,  16  N.  Y.  231.  dall  v.   Hamilton,   L.  R.  4  App.   Cas. 

2  Manns  v.  Bank,  73  Ind.  243;  504;  United  States  v.  Ames,  100  U.  S. 
Evansville  etc.  v.  State,  73  Ind.  219;  35;  Wilson  v.  Buell,  117  Ind.  315; 
38  Am.  Rep.  129.  Ferrall  v.  Bradford,  2  Fla.  508;  50  Am. 

3  Roberts  v.  Rice,  71  Ala.  187.  Dec.  293;  Jansen  v.  Grimshaw.  125  111. 

*  McAlpin  V.  Burnett,  19  Tex.  500;  4(iS;  Lauer  v.  Bandow,  48  Wis.  638. 
Muncie  N.  B.  v.  Brown,  112  Ind.  474;  And  perhaps  even  the  presentation  and 
Kempker  v.  Comer,  73  Tex.  196.  allowance  of  a  claim  against  the  estate 

*  Lawrence  v.  Beecher,  116  Ind.  of  a  deceased  joint  obligor  may  merge 
312.  the  liability,  and  release  the  surviving 

*  People  V.  Harrison,  82  111.  84;  Ses-  oljligors:  Jameson  v.  Barber,  60  Wis. 
sions  V.  Johnson,  95  U.  S.  347;  Ken-  630. 


405  MERGER,  OR    FORMER    RECOVERY.  §  232 

of  the  makers  of  a  joint  note  did  not  merge  it  as  to  tlie 
other  maker.  Notwithstanding  the  respect  everywhere 
entertained  for  the  opinions  of  this  great  jurist,  this  par- 
ticular one  was  rarely  assented  to  in  the  state  courts,  was 
doubted  and  criticised  in  England,- and,  after  many  years, 
was  directly  overruled  in  the  same  court  in  which  it  was 
pronounced.^  The  cases  in  accord  with  it  are  few,^  while 
those  which  oppose  it  are  very  numerous.^ 

§232.  Partners.  —  It  is  well  settled  that  the  liability 
of  partners  for  a  debt  due  from  the  firm  is  such  that  a 
several  action  cannot  be  maintained  against  each  partner, 
if  a  plea  in  abatement  is  interposed.  In  case  no  such 
plea  is  made,  and  a  judgment  is  obtained  against  one  or 
more  of  the  partners,  no  further  suit  can  be  maintained."* 
This  rule  in  relation  to  partnerships  yields  to  no  hardship. 
Thus  when  plaintiff  procured  one  member  to  confess 
judgment  for  the  firm,  the  confessing  member  was  held 
to  be  bound  by  the  judgment,  whilst  his  copartners  were 
neither  bound  by  the  judgment,  nor  liable  to  any  other 
action  upon  the  same  liability.^  And  a  judgment  against 
the  known  members  of  a  partnership  discharges  the  secret 
or  dormant  members.  The  fact  that  plaintiff  was  not  in- 
formed as  to  all  the  persons  bound  does  not  prevent  the 
liability  from  merging  in  the  recovery.^     This  rule  has 

1  Mason  v.  Eldred,  6  Wall.  231.  Harris  v.  Dunn,   18  U.  C.  Q.  B   352; 

2  Treasurers  v.  Bates,  2  Bail.  362;  Robertson  v.  Smith,  18  Johns.  459;  9 
Collins  V.  Lemasters,  1  Bail.  348;  21  Am.  Dec.  227.  .  -d  i  -jon 
Am  Dec.  469,  and  note;  Sneed  v.  >  Nichols  v.  Burton,  5  Bush  320; 
Wiester,  2  A.  K.  Marsh.  277;  Union  Candee  v.  Clark,  2  Mich  2o5;  Averi  1 
Bank  V.  Hodges,  11  Rich.  480;  Beazley  v.  Loucks,  6  Barb  19;  Mason  v.  El- 
V.  Sims,  81  Va.  644.  dred,  6  ^N^\\.  231 ;  Lydam  v   Cannon, 

3  Ward  V.  Johnson,    13  Mass.    1^8;  1  Houst.  431 ;  Woodworth  t>.  Spaffords, 
Thomas  v.  Rumsey,  6  Johns.  26;  Suy-  2  McLean,   18;  Sloo  v    Lea,    18  Ohio, 
dam  V.  Barber,   18  N.  Y.  468;  75  Am.  279;  United  States  v.  Irofton,  4  Story, 
Dec.   254;  Brady  v.  Reynolds,    13  Cal.  646;  Crosby  ».  Jeroloman,  37  Iiul.  2/b; 
31 ;  Wann  v.  McNulty,  2  Gilm.  355;  43  Ex  parte  Higgins   3  De  Gex  &  .L  33 
Am.  Dec.  58;  Smithi;.  Black,  9  Serg.  "  North  v.  Mudge,  13  Iowa,  496;  81 
&  R.   142;  11  Am.   Dec.  686;  Philson  Am.  Dec.  441.             .,    „  ,    t   tvt      v. 
„.   Bamfield,    1   Brev.   20l';  Benson  v.  ^^  S^ott  i,.  Colmesnil,  7  J  J-  Marsh 
Paine    17  How.  Pr.  407;  Henderson  v.  416;  Smith  v.  Black   9  Serg    &  K.  142 
Reeves   6  Blackf    101;  King  v.  Hoare,  11  Am.  Dec.  686;  Moale  v.  Holhns,  11 
2  DoS  &!!    382;  M;ghee'..  Collins;  Gill  &  J.  H;  33  Am.    Dec^   684;  Ken- 
27    1.1(1.    S3;    Kingsley  v.    Davis,    104  dall  v.  Hamilton,  L.  R.  4  App.   Oas. 
Mass.  178;  Root  v.  Dill,  38  Ind.  169;  504. 


§  233        MERGER,  OR  FORMER  RECOVERY.  406 

been  violated  in  South  Carolina.  Where  plaintifif  sold 
goods  to  A  and  took  his  note  for  the  purchase-money,  a 
judgment  recovered  upon  the  note  was  held  not  to  pre- 
vent a  further  action  from  being  sustained  against  B,  who 
had,  since  the  judgment,  been  discovered  to  be  A's  co- 
partner.^ This  case  is,  however,  entirely  unsupported  by 
authority  not  likely  to  be  anywhere  sustained. 

§  233.     Joint-debtor  Acts.  —  In  some  of  the  states,  pro- 
visions have  been  incorporated   into  the  codes  of  civil 
procedure  authorizing  a  judgment  to  be  rendered  in  any 
action  against  several  persons  jointly  liable,  without  ser- 
vice on  all  of  the  defendants,  such  judgment  to  be  satis- 
fied out  of  the  individual  property  of  the  defendant  served 
and  the  joint  property  of  all  the  defendants.     It  is  further 
provided,  in  the  states  of  Michigan  and  New  York,  that 
"  such  judgment  shall  be  conclusive  evidence  of  the  liabil- 
ities of  the  defendant  who  was  served  with  process  in  the 
suit,  or  who  appeared  therein,  but  against  every  other 
defendant  it  shall  be  evidence  only  of  the  extent  of  the 
plaintiff's  demand  after  the  liability  of  such  defendant 
shall  have  been  established  by  other  evidence."     This 
clause  recognizes  the  continuance  of  the  liability  of  a  de- 
fendant, not  served  with  process,  after  judgment  has  been 
rendered  against  him   as   provided   in  the  statute.     Its 
effect,  therefore,  is  to  prevent  the  incident  of  merger  from 
attaching  to  the  judgment  and  operating  as  a  release  of 
any  defendant  who,  though  a  party  to,  was  not  personally 
served  in  the  suit.     Such  defendant  may  be  subsequently 
sued,  and  subjected  to  a  personal  judgment.^     Wherever 
the  statute  relating  to  joint  debtors  authorizes  a  judgment 
to  be  entered  upon  the  service  of  process  against  part  only 
of  such  debtors,  and  contemplates  that  those  not  served 
with  process  shall  remain  liable,  it  is  evident  that  a  judg- 
ment, as  to  defendants  against  whom  it  is  not  personally 

1  Watson  V.    Owens,    1    Rich.    Ill;     Bonesteel   v.    Todd,  9  Mich.  371:   SO 
Union  Bank  v.  Hodges,  11  Rich.  480.       Am.  Dec.  90;  Mason  v.  Eldred,  6  Wall. 

2  Oakley  v.  Aspinwall,  4  N.  Y.  515;     239. 


407  MERGER,  OR    FORMER    RECOVERY.       §§  234,  235 

binding,  does  not  merge  their  liability.^  In  some  of  (he 
states  statutes  have  been  enacted  by  which  liabilities 
otherwise  joint  have  been  made  joint  and  several.  Where 
such  is  the  case,  a  judgment  against  one  obligor  cannot 
merge  or  extinguish  the  liability  of  another.^ 

§  234.  Exceptions. — If,  in  Indiana,  one  of  the  joint 
promisors  dies,  and  judgment  is  afterwards  obtained 
against  the  survivor,  who  is  insolvent,  the  original  debt 
will  furnish  a  claim  liable  to  be  enforced  by  proceedings 
against  the  estate  of  the  deceased.^  Where  a  joint  prom- 
ise is  made  by  parties  residing  in  different  states,  and 
probably  in  every  case  in  which  it  is  not  possible  to  bring 
an  action  in  any  court  before  which  all  the  joint  obligors 
can  be  compelled  to  appear,  a  recovery  against  those  within 
the  jurisdiction  of  the  court  will  not  bar  a  subsequent 
action  brought  against  those  who  were  without  such  juris- 
diction.* In  both  of  these  cases  it  is  evident  that  some 
modification  of  the  doctrine  of  merger  is  indispensable  to 
secure  to  plaintiffs  the  full  benefit  of  their  contracts.  In 
the  first  case  the  parties  liable  could  not  be  joined  in  one 
action.  The  plaintiff  therefore  showed  no  intention  of 
releasing  one  party  by  pursuing  the  other.  In  the  second 
case  no  judgment  could  be  secured  in  any  court,  binding 
on  both  promisors.  To  give  to  a  judgment  against  either 
the  effect  of  a  merger  of  the  cause  of  action  against  both 
would  therefore  be  to  require  plaintiff,  without  any  fault 
of  his,  to  abandon  his  remedy  against  a  part  of  the  co- 
obligors. 

§  235.     Joint  and  Several  Contractors.— A  judgment 
against  any  less  than  the  entire  number  of  persons  bound 

^  Rufty  V.  Claywell,  93  N.  C.  306;  487;  Yoho  v.  McGoyern,  42  Ohio  St. 

Wooters  v.  Smith,  56  Tex.   198;  Ellis  11;  Mermm  v.   Barker    12     In.l.    /_4; 

V.  Bone,  71  Ga.  466.  Eastern  T   B   '^  Bebee,  53  Vt.  1  / ; ;  38 

2  Rufty  V.  Claywell,  93  N.   C.  306;  Am.  Rep.  66o;  Olcottr  Little,  9  N.  H. 

Hyman  v.  Stadler,  63  Miss.  362.  ''^50;32  Am  Dec  3o/;  Wiley  ;•.  Holmes 

MVeyer    v.    Thornburgh,     15    Ind.  28  Mo.  286;  /o  Am.     ec.    20;  Dennett 

124;     Devol     v.     Halstead,     16     Iml.  „.  Chick    2  Greenl.   1 9.^;  1     Am    Dec. 

287  59;  Hand  v.  >< utter,  56  Me.  339;  Browu 

*Tibbett8  V.  Shapleigh,   60  N.   H.  v.  Birdsall,  29  Barb.  549. 


§  235  a      MERGER,  OR  FORMER  RECOVERY.  408 

by  a  several  or  a  joint  and  several  obligation  does  not  re- 
lease the  residue  until  satisfied.'  An  obligation  by  which 
parties  bind  themselves  jointly  and  severally  is  usually 
construed  as  imposing  a  joint  or  several  liability,  at  the 
election  of  the  obligee.  Therefore  if  he  recovers  against 
the  obligors  jointly,  he  cannot  afterwards  recover  sever- 
ally, and  if  he  recovers  sovarally,  he  cannot  afterwards 
recover  jointly.^  In  Pennsylvania,  the  plaintiff,  by  insti- 
tuting a  joint  action,  is  presumed  to  elect  to  proceed 
jointly,  and  is  bound  by  such  election.  If,  therefore,  he 
accepts  judgment  against  less  than  the  entire  number 
sued,  he  is  not  permitted  to  proceed  against  the  others.* 
The  more  reasonable  view  is,  that  the  election  is  not  ir- 
revocable until  after  judgment  has  been  rendered.'* 

§  235  a.     Recovery  in  a  Different  Right  or  Capacity.  — 

A  person  may  sue  in  different  capacities  to  obtain  redress 
for  the  same  wrongful  act.  When  this  is  the  case,  he 
should  be  considered  as  if  he  were  two  distinct  persons, 
and  his  recovery  or  failure  to  recover  in  one  capacity  can- 
not affect  him  when  suing  in  another  capacity.^  A  re- 
covery by  partners  for  an  injury  to  their  business  by 
certain  slanderous  words  does  not  merge  a  cause  of  action 
existing  in  favor  of  any  member  of  the  firm  for  the  injury 
done  him  personally  by  the  same  words.^  In  this  case 
the  injury  to  either  partner  as  an  individual  could  not 
have  been  the  subject  of  a  recovery  in  the  former  action; 
and  hence  it  could  not  be  merged  in  the  result  of  such 
action.  So  if,  under  a  statute,  a  child  is  entitled  to  re- 
cover for  bodily  injuries  suffered  by  it,  and  its  father  is 

J  Harlan  v.  Berry,  4  G.  Greene,  212;  S3;  Clinton  Bank  v.  Hart,  5  Ohio  St. 

McReady  v.  Rogers,    1   Neb.    124;    "JS  33;  Sessions  v.  Johnson,  95  U.  S.  347. 

Am.    Dec.    333;   Elliott   v.   Porter,    5  Contra,  United  States  v.  Cushman,  2 

Dana,  299;  Armstrong  v.   Prewett,  5  Sum.  426. 

Mo.  476;   32  Am.  Dec.  338;  King  v.  '  Beltzhoover   v.   Commonwealth,   1 

Hoare,   13   Mees.  &  W.  504;    Hix   v.  Watts,    126;   Williams   v.    McFall,    2 

Davis,  68  N.  C.  233;  Giles  v.  Canary,  Serg.  &  R.  280. 

99  Ind.   116;   Day  w.    Hill,  2   Speers,  »  Clinton  Bank  r.  Hart,  5  Ohio  St.  3.3. 

628;  42  Am.  Dec.  390.  *  Skoglund   v.   Minneapolis    S.    R'y 

^  Ex  parte  Rowlandson,  3  P.  Wms.  Co.,  45  Minn.  330. 

405;   United  States  v.  Price,  9  How,  6  pu^y  j,_  Qj-ay,  52  Mo.  528. 


409  MERGER,  OR  FORMER  RECOVERY.      §  235  a 

also  entitled  to  maintain  an  action  to  recover  for  the  loss 
of  the  services  of  the  child  resulting  to  him  from  the  same 
injury,  it  is  clear  that  a  recovery  by  the  child  cannot  pre- 
clude a  subsequent  recovery  by  the  father;^  nor  can  the 
recovery  by  the  parent,  as  administrator  of  the  child,  pre- 
clude his  subsequent  recovery  in  an  action  blought  in  his 
own  right,^  nor  a  recovery  in  his  own  right  bar  his  sub- 
sequent action  as  administrator  of  the  child.^  A  judg- 
ment in  favor  of  a  wife,  her  husband  being  joined  with 
her  as  a  nominal  party,  in  an  action  for  personal  injuries 
suffered  by  her,  cannot  prevent  his  recovering  for  the 
damages  suffered  by  him  from  the  same  cause,  such  as 
loss  of  her  labor  and  companionship,  and  expenses  by  him 
incurred.'*  A  judgment  in  favor  of  a  husband  for  the 
possession  of  goods  to  which  he  is  entitled  by  virtue  of  his 
marital  rights,  and  for  damages,  cannot  preclude  an  action 
by  his  wife;^  nor  an  action  for  an  assault  by  plaintiff  bar 
a  suit  by  his  widow,  in  the  event  of  his  subsequent  death, 
to  recover  her  damages  arising  from  the  same  assault.® 
If,  however,  the  person  in  whose  favor  a  former  recovery 
was  was  entitled  to  recover  all  the  damages  which  could 
be  recovered  for  the  act  or  default  complained  of,  then  no 
further  recovery  can  be  had,  whether  the  second  action  is 
brought  by  a  different  person  or  not.  Thus  after  a  re- 
covery for  personal  injuries  by  a  person  on  whom  they 
were  inflicted,  his  representatives  cannot,  on  his  subse- 
quent death,  maintain  an  action  for  the  same  injuries." 
So  where  a  beneficial  owner  of  property  had  recovered  for 
injuries  thereto  while  in  his  possession,  it  was  held  that 
he  could  not  in  another  capacity,  nor  could  his  trustee, 
recover  damages  for  the  same  injury.^    "A  judgment  in  an 

'  Wilton  V.  Middlesex  R.  R.  Co.,  125  «  Donahue  v.  Prexler,  82  Ky.   157; 

Mass.  130;  Bridger  v.   Asheville  &  S.  56  Am.  Rep.  880. 

R.  R.  Co.,  27  S.  0.  456;  13  Am.  St.  '  Littlcwood  v.  New  York,  89  N.  Y. 

Rep.  653.  24;  42  Am.  Rep.  271. 

2  Bradley  v.  Andrews,  51  Vt.  525.  ^  Coltoa  v.  Ondcrdonk,  69  Cal.  155; 

'  Karr  v.  Parks,  44  Cal.  46.  58  Am.  Rep.  550;  Athorton  v.  Ather- 

*Manni;.  City  of  Rich  Hill,  28  Mo.  ton,  2   Ba.  St.    112;   Loeb  v.  Chicago 

App.  497.  etc.  R.  R.  Co.,  60  Miss.  933. 

°  Rogers  V.  Roberts,  53  Md.  519. 


§  236        MERGER,  OR  FORMER  RECOVERY.  410 

action  of  assumpsit  brought  by  a  husband  and  wife,  on  a 
contract  by  a  carrier  of  passengers  to  carry  the  wife  safely, 
for  injuries  to  the  wife  while  being  carried,  is  a  bar  to 
another  action  of  assumpsit  on  the  same  contract,  by  the 
husband  alone,  to  recover  for  the  same  injuries.  A  dif- 
ferent rule  prevails  when  the  action  is  in  tort  against  the 
carrier  for  a  breach  of  public  duty,  except,  perhaps,  in 
states  like  New  Jersey,  where  by  statute  the  husband  may, 
in  such  an  action,  add  claims  in  his  own  right  to  those  of 
his  wife."  ^ 

§  236.  Trespassers. — The  liability  of  persons  joining 
with  one  another  in  the  commission  of  a  trespass  is  joint 
and  several,  and  the  effect  of  a  judgment  recovered  against 
them  in  merging  the  cause  of  action  is,  in  America, 
governed  by  the  rules  applicable  to  judgments  upon  joint 
and  several  contracts.^  The  early  English  and  American 
authorities  sustained  an  opposite  conclusion.^  In  Eng- 
land, after  some  considerable  doubt  had  been  manifested 
upon  this  question,  the  courts  decided  to  follow  the  early 
decisions,  instead  of  concurring  in  the  departure  taken  by 
the  American  courts.  "We  entertain,"  said  Willis,  J.,  in 
the  common  pleas,  "the  highest  respect  for  the  American 
jurists,  and  are  always  ready  to  receive  instruction  from 

1  Pollard  V.  R.  R.  Co.,  101  U.  S.  20  Iowa,  310;  McGehee  v.  Shafer,  15 
223.  Tex.  198;  Stone  v.  Dickinson,  5  Allen, 

2  Elliott  V.  Porter,  5  Dana,  299;  75  29;  81  Am.  Dec.  727;  Atlantic  D.  Co. 
Am.  Dec.  689;  Blann  v.  Crocheron,  1^  v.  Mayor,  53  N.  Y.  64;  Guellet).  Swan, 
Ala.  647;  54  Am.  Dec.  203;  State  v.  19  Johns.  381;  10  Am.  Dec.  234; 
Boyce,  72  Md.  140;  20  Am.  St.  Rep.  Hawkins  t;.Hatton,  1  Nottft  McC.  318; 
458;  Hyde  v.  Noble,  13  N.  H.  494;  9  Am.  Dec.  700;  Jack  v.  Hudnall,  25 
38  Am.  Dec.  508;  2  Hilliard  on  Torts,  Ohio  St.  255;  18  Am.  Rep.  298;  Maple 
310,  311;  Elliott  v.  Haj'den,  104  Mass.  v.  Cincinnatti  etc.  R.  R.  Co.,  40  Ohio 
180;  Morgan  v.  Chester,  4  Conn.  387;  St.  313;  48  Am.  Rep.  685. 
Matthews?;.  Menedger,  2 McLean,  145;  ^  Lendall  v.  Pinfold,  1  Leon.  19; 
Bloss  V.  Plymale.  3  W.  Va.  403;  100  Chitty's  Pleading,  89,  citing  Cro.  Jac. 
Am.  Dec.  752;  Livingston  v.  Bishop,  74,  2  Bos.  &  P.  70,  71,  and  1  Saund. 
1  Johns.  290;  3  Am.  Dec.  330;  United  207  a;  Broome  v.  Wooton,  Cro.  Jac. 
Society  v.  Underwood,  21  Am.  Rep.  73;  Yelv.  67;  Warden  v.  Badey,  4 
214;  11  Bush,  265;  Knight  v.  Nelson,  Taunt.  88;  King  v.  Hoare,  13  Mees.  & 
117  Mass.  458;  Ayer  v.  Ashmead,  31  .  W.  494.  These  cases  are  also  sustained 
Conn.  447;  83  Am.  Dec.  154;  Wright  by  several  American  decisions:  Hunt 
V.  Lathrop,  2  Ohio,  33;  15  Am.  Dec.  v.  Bates,  7  R.  I.  217;  82  Am.  Dec. 
529;  Sheldon  v.  Kibbe,  3  Conn.  214;  592;  Wilkes  v.  Jackson,  2  Hen.  &  M. 
8  Am.  Dec.  176;  Turner  v.  Hitchcock,  355. 


411  MERGER,  OR  FORMER  RECOVERY.        §  236 

their  decisions  upon  questions  of  general  law.     But  the 
question  whether  a  plaintiff  is  to  be  allowed  to  maintain 
a  second  action  against  one  whom  he  ought  to  have  sued 
jointly  with  another  in  a  former  action,  is  purely  one  of 
procedure,  and  on  such  a  question  we  are  bound  by  the 
authorities  in  our  own  courts."^     This  decision  of  the 
common  pleas,  subsequently  coming  on  to  be  reviewed  in 
the  exchequer  chamber,  was  aflBrmed,  on  the  ground  that 
it  was  sustained  by  principle  as  well  as  by  precedent. 
Kelly,  C.  B.,  in  the  beginning  of  his  opinion,  in  consid- 
ering the  question  upon  principle,  reasoned  as  follows: 
"  The  defendant,  by  way  of  plea,  alleges  that  an  action 
was  brought  for  the  same  cause  against  the  other  wrong- 
doer, and  a  judgment  obtained  against  her,  which  remains 
in  full  force;    and  the  question  is,  whether  that  affords 
any  defense  to  this  action.     That  a  judgment  and  execu- 
tion with  satisfaction  would  be  a  defense  is  not  disputed. 
A  long  series  of  authorities  has  so  laid  down;  but  it  was 
doubted  whether  judgment  and  execution  without  satis- 
faction  was    a  bar   also.     It  will  be    right,  therefore,  to 
consider  whether  this  latter  is  not,  upon  principle,  a  good 
and  valid  defense.     If  it  were  held  not  to  be  a  defense, 
the  effect  would,  in  the  first  place,  be  to  encourage  any 
number  of  vexatious  actions  whenever  there  happened  to 
be  several  joint  wrong-doers.     An  unprincipled  attorney 
might  be  found  willing  enough  to  bring  an  action  against 
each  and  every  of  them,  and  so  accumulate  a  vast  amount 
of  useless  costs,  if  judgment  against  one  of  them  did  not 
operate  as  a  bar  to  proceedings  against  the  others.     The 
mischief  would  not  even  rest  there.     Judgment  having 
been  recovered  against  one  or  more  of  the  wrong- doers, 
and  damages  assessed,  if  that  judgment  afforded  no  de- 
fense, the  plaintiff  might  proceed  to  trial  against  another 
of  them,  and   the  second  jury  might    assess  a  different 
amount  of  damages.     Whi«h  amount  is  the  plaintiff  to 

'  Brinsmead  v.  Harrison,  L.  R.  7  Com.  P.  551.     Sec  also  Sloan  v.  Creasor,  22 
U.  C.  Q.  B.  130. 


§  236        MERGER,  OR  FORMER  RECOVERY.  412 

levy?  There  are  other  grounds  upon  which  it  would  be 
extremely  inconvenient  and  unjust  if  a  second  action 
could  be  maintained.  But,  independently  of  the  mischief 
which  would  result  from  holding  the  law  to  be  as  con- 
tended for,  let  us  see  how  the  authorities  stand.  In  the 
first  place,  there  is  no  authority  whatever — since  the 
reigns  of  the  Henrys  and  the  Edwards  nothing  approach- 
ing to  an  authority  has  been  cited  —  to  show  that  such  a 
plea  as  this  would  not  be  a  good  defense.  In  the  absence, 
therefore,  of  authority  to  the  contrary,  upon  principle,  and 
upon  what  I  conceive  to  be  binding  authority  in  its  favor, 
I  come  to  the  conclusion  that  such  a  plea  as  this  affords 
a  good  defense."* 

But,  with  all  due  deference  to  so  high  an  authority,  it 
strikes  us  that,  while  professing  to  discuss  this  question 
upon  ■princiiyle,  the  chief  baron  discussed  it  only  with 
reference  to  considerations  of  hardship  and  inconve- 
nience. The  only  way  in  which  it  can  be  discussed  upon 
principle  is  to  demonstrate  that  the  cause  of  action  is 
joint,  and  rvoi  joint  and  several.  This  the  chief  baron  did 
not  attempt.  If  considerations  of  convenience  are  to 
govern  in  determining  the  application  of  the  law  of  mer- 
ger, it  might  be  denied  in  many  instances,  where  the  lia- 
bility is  clearly  joint  and  several.  By  way  of  illustration, 
suppose  that  one  of  the  makers  of  a  joint  and  several  note, 
on  being  sued  thereon,  interposes  a  defense,  and  upon 
the  trial  of  the  cause  the  jury  allows  the  defense,  in  whole 
or  in  part.  Another  action  may  then  be  brought  against 
the  other  promisor;  he  may  interpose  the  same  defense, 
and  support  it  by  the  same  evidence,  and  yet  the  jury 
before  whom  the  second  action  is  tried  may  find  a  ver- 
dict entirely  different  from  that  found  in  the  first  action. 
In  such  case,  the  plaintiff  would,  no  doubt,  take  out  exe- 
cution on  the  judgment  which  happened  to  be  most  favor- 
able to  his  interests.     Or  suppose  the  note  to  be  made  by 

1  Brinsmead  v.  Harrison,  L.  R.  7  Com.  P.  557.     See  also  Sloan  v.  Creasor,  22 
U.  C.  Q.  B.  130. 


413  MERGER,  OR   FORMER    RECOVERY.  §  236 

twenty  joint  and  several  promisors.  In  that  event,  it  is 
possible  that  the  payee  might  find  an  attorney  willing,  or 
even  anxious,  to  prosecute  twenty  separate  suits,  and  in 
each  suit  to  incur  and  tax  the  largest  amount  of  costs 
allowable  by  law.  In  fact,  the  inconvenience  and  injus- 
tice of  allowing  several  judgments  to  be  recovered  upon 
any  joint  and  several  liability  are  as  likely  to  arise  in 
suits  upon  promissory  notes  as  in  actions  to  recover  for 
trespasses  and  torts  committed  by  two  or  more  persons. 
If  hardship  and  inconvenience  control  the  judgment  of 
the  court  in  the  latter  class  of  actions,  they  ought  equally 
to  control  in  the  former. 

A  few  of  the  American  cases,  while  admitting  that  the 
successful  prosecution  of  an  action  against  one  trespasser 
does  not  affect  the  cause  of  action  against  his  co-trespass- 
ers, decide  that  the  mere  issuing  of  an  execution  is  a  con- 
clusive election  to  consider  the  defendant  as  exclusively 
responsible.^  But  a  majority  of  them^  discountenances 
this  manifest  absurdity.  If  the  mere  election  to  pursue 
one  trespasser  were  binding  on  the  plaintiff  as  a  release  of 
all  the  co-trespassers,  it  seems  difficult  to  understand  why 
that  election  is  not  as  obvious  when  the  suit  has  been 
prosecuted  to  final  judgment  as  when  the  plaintiff  takes 
the  first  step  towards  its  enforcement.  If,  on  the  other 
hand,  such  election  in  no  way  involves  the  several  causes 
of  action  against  the  other  trespassers  prior  to  the  issuing 
of  an  execution,  it  is  difficult  to  perceive  why  or  how  that 
event  necessarily  involves  them.  How  vain  and  delusive 
that  law  must  be  which  declares  the  right  of  an  injured 
party  to  proceed  severally  against  every  person  concerned 

>  Allen  V.  Wheatley,  3  Blackf.  832;  4;  Jones  v.  McNccal,  2  Bail.  4G6;  Love- 
Fleming  V.  McDonald,  50  Ind.  27a;  joy  v.  Murray,  3  Wall.  1;  Page  ?>.  Free- 
19  Am.  Rep.  711;  White  v.  Phillirick,  man,  19  Mo.  421;  Floyd  v.  Browne,  1 
5  Greenl.  147;  17  Am.  Dec.  214;  Smith  Rawle,  125;  18  Am.  Dec.  002;  Knott 
V.  Singleton,  2  McMull.  184;  39  Am.  ■?;.  Cunningham,  2  Sneed,  204;  Griffie  y. 
Dec.  122,  McCluug,  5  W.  Va.  133;  Osterhont  v. 

■^  Murray  v.   Lovejoy,  2   Cliff.    191;  Roberts,  8  Cow.  43;    McVey  v.   Mar- 
Sheldon  V.  Kibbe,  3  Conn.  214;  8  Am.  ratt,  80  Iowa,  132;  Blann  o.  (U-ochurou, 
Dec.    170;   Sanderson   v.    Caldwell,    2  20  Ala.  320;  54  Am.  Dec.  203. 
Aiken,  195;  Sharp  v.  Gray,  5  B.  Mon. 


§  237        MERGER,  OR  FORMER  RECOVERY.  414 

in  committing  an  injury;  which  sustains  him  until  the 
liability  of  every  wrong-doer  is  severally  determined  and 
evidenced  by  a  final  judgment;  and  which,  after  thus 
"holding  the  word  of  promise  to  his  ear,  breaks  it  to  his 
hope,"  by  forbidding  him  to  attempt  the  execution  of 
either  judgment,  upon  penalty  of  releasing  all  the  others. 
Plaintiff  can  have  but  one  satisfaction  for  each  trespass, 
whether  he  has  recovered  several  judgments  or  none. 
Such  satisfaction  abates  all  actions  pending,  and  dis- 
charges all  judgments  obtained,  against  co-trespassers,^ 
except  as  to  costs,  which,  it  seems,  may  be  collected  upon 
each  judgment.^  Pursuing  trespassers,  or  any  of  them 
severally,  is  a  conclusive  election  to  consider  the  trespass 
as  several,  and  is  a  bar  to  a  joint  action  subsequently  in- 
stituted.^ 

§  237.  Vesting  Title.  —  Where,  instead  of  suing  for  the 
mere  damages  occasioned  by  an  act  of  trespass  or  conver- 
sion, the  plaintiff  recovers  judgment  for  the  value  of  the 
property  injured  or  converted,  it  has  frequently  been  held 
that  the  recovery  vests  the  title  to  the  property  in  the  de- 
fendant, and  that  as  it  would  be  unjust  for  the  defendant 
to  acquire  title  to  the  property  taken  or  injured,  while 
others  might  be  made  liable  to  pay  the  entire  value  thereof 
in  a  subsequent  action,  the  plaintiff  could  not  be  allowed 
to  proceed  against  any  person  concerned  in  the  trespass 
or  conversion  and  not  included  in  the  first  action.*  If, 
indeed,  the  mere  rendition  of  a  judgment  transferred  the 

1  Mitchell  V.  Libbey,  33  Me.  74;  »  Murray  v.  Lovejoy,  2  Cliff.  191; 
Matthews  v.  Lawrence,  1   Denio,   212;     Smith  v.  Rines,  2  Sum.  348. 

43  Am    Dec.  665;  Smith  v.  Singleton,  *  Campbell  v.  Phelps,  1  Pick.  61;  11 

2  McMull  184;  39  Am.  Dec.  122;  Sav-  Am.  Dec.  139;  Broome  v.  Wooton, 
acre  V  Stevens,  128  Mass.  254;  Luce  v.  Yelv.  67;  Adams  v.  Broughton,  2 
D'exter,  135  Mass.  23;  Hawkins  r.  Hat-  Strange,  1078;  Floyd  u  Browne  1 
ton  1  Nott  &  McC.  318;  9  Am.  Dec.  Rawle,  121;  18  Am.  Dec.  602;  Woolley 
•too'  v.  Carter,  7  N.  J.  L.  85;  1 1  Am.  Dec. 

2  Livingston  r.  Bishop,  1  Johns.  290;  520;  White  v.  Philbrick.  5  Greenl.  147; 

3  Am  Dec.  330;  Knickerbocker  v.  17  Am.  Dec.  214;  Emery  v.  Nelson,  9 
Colver,  8  Cow.  Ill;  First  N.  B.  v.  Serg.  &  R.  12;  Buckland  n  Johnson, 
Piano  Co.,  45  Ind.  5;  Ayer  v.  Ash-  15  Com.  B.  145;  23  L.  J.  Com.  P.  204. 
mead  81  Conn.  447;  83  Am.  Dec.  154;  This  last  case  has  been  overruled  by 
Sodousky  v.  McGee,  4  J.  J.  Marsh.  Brinsmead  v.  Harrison,  L.  R.  6  Com. 
267.  I'-SSS. 


415  MERGER,  OR    FORMER   RECOVERY.  §  237 

title  of  the  property  in  such  eases  to  defendant,  the  plain- 
tiff's cause  of  action  would  of  course  cease  to  be  held  by 
him,  and  his  claim  to  further  proceedings  based  upon  it 
could  not  be  supported.  But  the  American  courts  have 
not  generally  attributed  this  effect  to  judgments.  The 
transfer  of  title,  in  their  opinion,  does  not  take  place  until 
the  judgment  is  completely  satisfied,  and  the  value  of  the 
property  as  ascertained  by  the  court  has  been  paid  to 
the  plaintiff.  Until  such  payment,  therefore,  there  is  no 
obstacle  to  prevent  him  from  seeking  redress  in  the  courts 
against  any  one  originally  liable.^  But  when  the  judg- 
ment has  been  paid,  the  title  to  the  property  is,  for  most 
purposes,  vested  in  the  defendant  by  relation  at  the  date 
of  the  conversion.  The  plaintiff  elects  by  his  proceeding 
against  the  defendant  to  compel  the  latter  to  become  a 
purchaser  of  the  property  and  to  pay  its  value  at  the  date 
of  the  conversion.  When  the  plaintiff  has  succeeded  in 
compelling  this  involuntary  purchase  and  payment,  the 
title  thereby  acquired  by  the  defendant  relates  back  to  the 
date  of  the  conversion,  because  that  is  the  period  at  which 
the  plaintiff  has  chosen  to  treat  the  property  as  purchased 
from  him  by  the  defendant.^  Therefore  if  after  recover- 
ing judgment  for  the  conversion  of  certain  chattels,  the 
plaintiff  retakes  the  same  chattels  into  his  possession,  and 
subsequently  to  such  retaking  he  enforces  the  collection  of 
the  judgment,  such  collection  vests  the  property  in  the 
defendant  as  of  the  date  of  the  original  conversion,  and 
entitles  him  to  recover  against  the  plaintiff  for  the  re- 
taking.* But  the  relation  of  title  back  to  the  period  of 
the  conversion  will  not  be  permitted  to  take  effect  to  the 

1  Osterhout  v.  Roberts,   8  Cow.  43;  joy  v.    Murray,   3   Wall.     1;    Elliott 

Sp'vev  V.  Morris,  18  Ala.  254;  52  Am.  v.  Hayden,    104  Mass.  180;    Smith  v. 

Dec  2"24;  Smith  i;.  Alexander,  4  Sneed,  Smith,    50   N.    H.    219;    McReady    v. 

4S'2;  Sanderson  v.  Caldwell,   2  Aiken,  Rogers,  1  Neb.  124;  93  Am.  Dec.  3;i3; 

203;   Jones   v.    McNeil,    2   Bail.    4(56;  St.  Louis  etc.  R'y  Co.  v.   McKmsey, 

Mort'an  v.  Chester,  4  Conn.  387;  Mat-  78  Tex.  298;  22  Am.  St.  Rep.  54. 
thew's  V.    Mened^'er,    2  McLean,    145;         ^  Hepburn  v.    Sewell,   5  Har.    &  J. 

Hyde  v.  Noble,  13  N.  H.  501;  McGee  211;  9  Am.  Dec.  512 
V.  Overby,  12  Ark.  164;  Sharp  v.  Gray,         =*  Smith  v.  Smith,  51  N.  H.  571;  50 

6  B.    Mon.   4;    Hepburn    v.   Sewell,   5  N.  H.  219. 
Har.  &  J.  212;  9  Am.  Dec.  512;  Love- 


§  238        MERGEK,  OK.  FORMER  RECOVERY.  416 

prejudice  of  innocent  third  persons  so  as  to  make  tlieni 
liable  as  trespassers.^ 

§  238.     Divisible  and  Indivisible  Causes  of  Action.  — 

That  a  single  or  entire  demand  cannot  be  split  so  as  to 
constitute  the  basis  of  more  than  one  suit,  and  that  the 
recovery  upon  any  part  of  such  demand  merges  the  whole, 
is  not  disputed,'^  although  the  plaintiff  may  have  assigned 
some  portion  thereof  to  a  third  person.^  It  is  equally  cer- 
tain that  one  person  may,  at  the  same  time,  hold  several 
distinct  causes  of  action  against  another,  and  may  main- 
tain an  action  on  any  of  such  causes,  without  prejudicing 
his  right  to  proceed  upon  any  of  the  others.*  Thus  a 
recovery  of  damages  for  the  wrongful  dismissal  of  the 
plaintiff  from  defendant's  employment  does  not  bar  a 
subsequent  action  for  wages  earned  during  such  employ- 
ment;" nor  a  recovery  for  money  deposited  with  defend- 
ant in  an  action  for  wages  due  to  him.®  A  recovery  for 
money  lent  does  not  bar  an  action  for  fraudulent  repre- 
sentations made  to  procure  the  loan;^  a  judgment  in  favor 
of  an  interpleader  in  an  attachment  suit  does  not  affect 
his  cause  of  action  against  an  ofiicer  for  a  wrongful  seiz- 
ure;^ a  recovery  in  assumpsit  on  a  written  contract  relat- 
ing to  the  sale  of  sheep  does  not  bar  a  subsequent  action 
of  trover  for  their  value.® 

Great  difficulty  has  been  experienced  in  determining 
what  constitutes  an  entire  or  single  demand;  and  many 
irreconcilable  adjudications  have  been  made  upon  the 
subject.  It  may  be  laid  down  as  a  general  rule  that  each 
separate  agreement  or  transaction  will  give  rise  to  one 

^  Bacon  v.  Kimmel,  14  Mich.  201.  *  Robbins  v.  Harrison,  31  Ala.  160; 

2  Staples  V.  Goodrich,  21  Barb.  317;  Rex  v.  Sheriff,  1  Barn.  &  Adol.  672; 
Waterbury  v.  Graham,  4  Sand.  215;  Wittick  v.  Traum,  27  Ala.  563;  62  Am. 
Warren  v.  Comings,  6  Gush.  103;  Smith  Dec.  778. 

V.  Jones,  15  Johns.  229;  Marsh  v.  Pier,  °  Perry  v.  Dickerson,  85  N.  Y.  345; 

4  Rawle,  273;  26  Am.  Dec.  131 ;  Crosby  35  Am.  Rep.  663. 

V.  Jeroloman,  37  Ind.  277;  Dutton  v.  *  Byrnes  v.  Byrnes,  102  N.  Y.  4. 

Shaw,  35  Mich.  431;  Guernsey  v.  Car-  '  Whittier  v.  Collins,  15  R.  I.  90;  2 

ver,  8  Wend.   492;  21  Am.    Dec.  60;  Am.  St.  Rep.  879. 

Turner  v.  Plowden,  5  Gill  &  J.  52;  23  «  Clark  v.  Brott,  71  Mo.  473. 

Am.  Dec.  596.  '  Gates  v.  Goreham,   5  Vt.   317;  26 

3  lugrahain  v.  Hall,  11  Serg.  &  R.  78.  Am.  Dec.  303. 


417  MERGEE,  OR  FORMER  RECOVERY.        §  239 

entire  and  independent  cause  of  action,  and  to  hut  one. 
Thus  if  several  parcels  of  merchandise  be  sold  at  one 
time,  the  transaction  will  constitute  but  one  demand/  A 
note  payable  in  one  year,  with  interest  payable  semi-annu- 
ally, comprises  two  distinct  contracts,  —  one  to  pay  the 
principal  sum  and  the  other  to  pay  the  interest.  A  judg- 
ment, after  the  principal  is  due,  in  an  action  for  interest, 
does  not  merge  both  contracts.^  F.  discounted  a  bill 
drawn  by  J.  upon  A.,  and  J.  and  A.  agreed  at  the  same 
time  that  in  case  the  bill  was  not  paid  at  maturity  they 
would  pay  thereon  twenty  pounds  for  each  month,  and 
F.  sued  J.  on  the  bill,  claiming  no  interest,  and  recovered. 
It  was  afterwards  held  that  the  agreement  to  pay  tw'enty 
pounds  per  month  interest  was  a  distinct  agreement,  upon 
which  F.  could  recover  in  another  action  for  every  month 
until  the  bill  had  merged  into  the  judgment  obtained 
upon  it.'  A  note  signed  by  A  B  &  Co.  and  by  A  B  fur- 
nishes two  causes  of  action,  —  one  against  A  B  and  the 
other  against  the  firm.  Each  cause  of  action  may  be  re- 
covereil  upon  severally.*  Where  the  law  provided  that 
the  plaintiff  should  have  judgment  in  certain  cases,  unless 
an  affidavit  of  defense  was  filed,  the  defendant  having 
filed  such  affidavit  as  to  part  of  the  claim,  the  plaintiff 
took  judgment  for  the  balance.  The  court  thereupon  held 
that  there  could  be  but  one  final  judgment  in  an  action, 
and  that  plaintiff  was  precluded  from  proceeding  for  the 
disputed  portion  of  the  claim.® 

§  239.     Actions  on  Account.  —  In  actions  for  goods  sold, 
for  money  loaned  and  received,  or  for  labor  performed,  at 

'  Smith  V.  Jones,  15  Johns.  229.  proper  after  the  principal  became  due. 

'^  Andover    Sav.   Bank  v.  Adams,   1  The  dissenting  opinion  of  Judge  Emery 

Allen,  28;  Dulaney  v.  Payne,  101  111.  appears  to  us  to  be  more  in  consonance 

325;   40  Am.   Rep.   205;   Sparhawk  v.  with    reason    and    authority  than  tlie 

Wills,  6  Gr'ay,  163.     The  case  of  Howe  opinion  of  the  majority  as  delivered  by 

V.  Bradey,   19   Me.    31,  is   sometimes  Judge  Shepley.                                + 

cited    as    sustaining  a  different  view;  ^  Florence  v.    Jenings,   2    Com.  B., 

and     perhaps    it    inferentially    does.  N.  S.,  454. 

But    that   case   did  not   involve   any  *  (xibnan  &  Co.  v.  Foote  &  Co.,  22 

question  concerning  the  efifect  of  a  re-  Iowa,  5()0. 

covery  for  interest.     It  merely  deter-  *  Brazier  v.    Banning,    20    Pa.    St. 

mined   that  such  a  recovery  was  iui-  345. 
Juno.  L— 27 


§  239        MERGER,  OR  FORMER  RECOVERY,  418 

various  times,  the  whole  sum  due  at  the  commencement 
of  the  suit  probably  constitutes  but  one  demand.  It  is 
said  to  be  reasonable  for  the  courts  to  presume,  in  such 
cases,  that  an  agreement  existed  in  pursuance  of  which 
the  plaintiff,  for  a  definite  period  of  time,  or  at  the  will  of 
both  parties,  was  to  furnish  goods,  to  loan  money,  or  to 
perform  labor;  and  that  the  amount  due  under  the  agree- 
ment should  constitute  but  one  cause  of  action.^  The 
amounts  due  upon  a  book-account  are  generally  regarded 
as  constituting  an  indivisible  demand.^  What  is  an  ac- 
count or  a  dealing  upon  account  is  difficult  to  state,  and  is 
probably  a  question  of  fact  to  be  determined  from  all  the 
circumstances.  Doubtless  where  the  parties  are  merchant 
and  customer,  or  are  regularly  doing  business  with  each 
other,  under  circumstances  calling  for  the  keeping  of  ac- 
counts, the  debtor  has  a  right  to  have  his  entire  indebt- 
edness treated  as  one  and  indivisible.  And  generally, 
where  a  creditor  seeks  to  recover  two  or  more  judgments 
for  items  of  indebtedness  due  him  when  the  first  action 
was  brought,  he  must  show  some  reason  why  such  in- 
debtedness should  be  treated  as  divisible.  The  question 
is  one  of  agreement  or  understanding,  express  or  implied, 
to  be  determined  by  the  ordinary  modes  of  business,*  or 
by  the  direct  agreement  of  the  parties.  Thus  where  one 
person  is  furnishing  articles  to  another,  and  they  agree 
that  bills  are  to  be  made  out  and  due  and  payable  at  the 
end  of  each  month,  this  has  been  held  to  give  rise  to  a 
separate  cause  of  action  at  the  end  of  each  month,  and 
to  warrant  two  separate  actions  and  recoveries  for  the 
amounts  due  at  the  end  of  two  months,  though  both  were 
due  before  either  action  was  brought.*     Some  courts,  how- 

'Secor  V.    Stur^is,    16  N".  Y.   548;  458;   Corey  v.  Miller,    12   R.  I.  337; 

Bunnell  w.  Pinto,  2  Conn.  431;  Pinney  Stevens  r.  Lockwood,  13  Wend.  644; 

V.  Barnes,   17  Conn.  420;  Lucas  v.  Le  28  Am.  Dec.  492. 

Compte,  42  111.  303.  ^  Pittman    v.    Chrisman,    59    Miss. 

^  Avery  v.  Fitch,  4  Conn.  362;  Lucas  126;  Magruder  v.  Randolph,  77  N.  C. 

V.  Le  Compte,   42  111.   303;  2  Smith's  79;    Borngesser  v.    Harrison,   12  Wis. 

Lead.  Cas.  671;  Bendernagle  v.  Cocks,  544;  78  Am.  Dec.  757;  Buck  v.  Wilson, 

19    Wend.    257;    32    Am.     Dec.     448;  113  Pa.  St.  423. 

Oliver  v.   Holt,   11  Ala.  574;   46  Am.  ♦  Beck  i;.  DevereauXj  9  Neb.  109. 
Dec.  228;  Alemmer  v.  Carey,  30  Alino, 


419  MERGER,  OR  FORMER  RECOVERY.        §  2iO 

ever,  consider  each  separate  charge  as  a  distinct  cause  of 
action,  not  to  be  affected  by  proceedings  for  the  recovery 
of  other  charges,  antecedent  or  subsequent.'  A  contract 
to  pay  the  hire  of  a  horse  and  buggy  is  so  distinct  from 
the  implied  obligation  to  pay  for  damages  thereto  during 
the  period  of  the  hiring  that  judgment  for  the  hire  does 
not  affect  the  claim  for  damages.^ 

§  240.  Indivisible  Demands.  —  Where  the  action  is 
upon  a  contract,  it  merges  all  amounts  due  under  or  aris- 
ing out  of  the  contract  prior  to  the  suit.  They  constitute 
a  single,  indivisible  demand.^  If  a  railroad  company 
agrees  to  build  a  crossing,  this  cannot  be  distinguished 
from,  a  covenant  to  do  any  other  act.  Upon  a  breach  of 
the  covenant,  by  a  failure  to  erect  the  crossing,  the  cove- 
nantor may  bring  an  action.  The  judgment  obtained  in 
such  action  will  be  considered  as  a  full  compensation  for 
all  damages  which  have  arisen  or  which  may  arise  from 
the  breach  of  the  covenant;  and  the  plaintiff  cannot 
therefore  recover  for  any  damages  sustained  by  him  sub- 
sequently to  the  former  recovery.*  If  a  bond  is  given  to 
a  constable  to  indemnify  him  from  all  damages,  charges, 
trouble,  and  expense  that  he  may  be  put  to  by  reason  of 
a  levy  upon  and  sale  of  specified  property,  all  these  items 
constitute  a  single  demand.^ 

If  one  has  hired  property  of  or  is  himself  working  for 
another  for  a  compensation  to  be  paid  at  regular  intervals, 
as  by  the  week  or  month,  whatever  is  due  him  at  any  one 
time,  though  it  may  be  made  up  of  wages  due  for  two  or 
more  months  or  years,  is  regarded  as  due  upon  one  con- 
tract, and  therefore  not  subject  to  separate  actions,  and  a 

iRex   V.  Sheriff,   1    Barn.  &   Adol.  179;   Rosenmueller  v.  Lampe,  89   111. 

672;  Mcintosh  v.  Lown,  49  Barb.  550.  212;  31  Am.  Rep.  74;  Joyce  v.  Moore, 

2  Shaw  V.  Beers,  25  Ala.  449.  10  Mo.  271. 

*  Goodrich    v.    Yale,    97    Mass.    15;  Miuliaiia    B.    R.    R.  Co.   v.   Koons, 

O'Beirne  v.  Lloyd,  43  N.  Y.  248;  Hopf  105  Ind.  507;  Smith  v.  Great  Western 

V.  Myers,    42   Barb.    270;    Warren  v.  R'y  Co.,    6  U.    C.   C.  P.    156;    citing 

Comings,  6  Cnsh.  103;  Daltoii  v.  Bent-  Manning  v.  Eastern  Counties  R'y  Co., 

ley,   15   111.   420;    Cliinn  v.   Hamilton,  12  Mues.  &  W.  2S7. 

Hemp.  438;    Draper  v.   Stouvenel,  38  *  Bancroft  v.    Wiuspear,    44    Barb. 

N.  Y.  219;  Sykea  v.  Gerber,  98  Pa.  St.  209. 


§  240        MERGER,  OR  FORMER  RECOVERY.         420 

recovery  for  any  month  or  year  precludes  any  further  re- 
covery for  wages  due  when  the  action  w^as  brought, 
whether  earned  before  or  after  those  for  which  a  recovery 
was  had;^  or  if  the  contract  was  for  a  year  or  other  stated 
time,  and  the  employee  is  wrongfully  discharged,  and  be- 
fore the  expiration  of  the  year  sues  for  and  recovers  part 
of  his  wages,  or  damages  for  his  dismissal,  his  entire  claim 
is  thereby  merged.^  If,  by  virtue  of  a  lease  or  contract, 
moneys  become  due  in  installments  or  at  regular  intervals, 
a  recovery  of  any  installment  merges  any  other  due  at  the 
time  of  the  commencement  of  the  action,^  but  does  not 
affect  installments  subsequently  falling  due.*  Therefore 
if  a  bond  of  indemnity  is  given,  a  judgment  for  a  breach 
thereof  cannot  merge  a  cause  of  action  arising  out  of  a 
subsequent  breach.^  Though  a  note  under  which  inter- 
est falls  due  in  installments  declares  that  if  any  install- 
ment is  not  paid  when  due  the  entire  principal  shall 
become  due,  a  recovery  of  interest  does  not  merge  the 
principal/  Where  there  is  a  continuing  covenant,  such, 
for  instance,  as  a  covenant  for  rej^airs,  a  recovery  thereon 
will  not  destroy  or  affect  the  plaintiff's  right  to  recover 
damages  occasioned  by  a  breach  of  covenant  occurring 
subsequently  to  the  commencement  of  the  prior  action/ 
An  extreme  application  of  the  rule  that  but  one  cause 
of  action  can  arise  from  an  entire  contract  occurred  in 
a  case  in  Ohio,  in  which  it  appeared  that  the  owner  of 
a  barge  entered  into  a  contract  declaring  that"  he  had 
hired  it  to  the  owners  of  a  steamer  "  for  the  sum  of  ten 
dollars  per  day,  until  delivered  back  in  like  good  order 
as  received."  After  his  barge  had  been  retained  in  the 
service  of  the  owners  of  the  steamer  for  a  considerable 

'  Rosenmneller  u.  Lampe,  89111.  212;  St.  58;  Armfield  v.  Nash,  31  Miss.  361; 

31  Am.  Rep.  74;  Stein  v.  The  Prairie  Epstein  v.  Greer,  85  Ind.   372;  Ahl  v. 

Rose,  17  Ohio  St.  475;  93  Am.  Dec.  6:U.  Ahl,  60   Md.  207;   Clark  v.   Jones,   1 

2  Booge  V.  Pacitic  R.  R.  Co.,  33  Mo.  Denio,  519;  43  Am.  Dec.  706. 
212;  82  Am.  Dec.  160;  Kahn  v.  Kahn,  *  Orendorflf  v.  Utz,  48  Md.  298. 
24  Neb.  709.  «  Wehrly  v.  Morfoot,  103  111.  183. 

3  Perry  v.  Mills,  76  Iowa,  622.  '  Beach  v.  Crain,  2  N.  Y.  86;  49  Am. 
*  Burritt  v.  Belfy,  47  Conn.  323;  36     Dec.  369;  Fish  v.  Folley,  6  Hill,  54. 

Am.  Rep.  79;  Hamm  v.  Beaver,  31  Pa. 


421  MERGER,  OR  FORMER  RECOVERY.        §  240 

period  of  time,  he  brought  an  action  against  them,  and 
recovered  the  amount  due  up  to  the  commencement 
thereof.  At  a  subsequent  date  he  brought  another  ac- 
tion, to  recover  an  amount  alleged  to  have  become  due 
him  for  the  hire  of  the  barge  after  the  commencement  of 
the  former  action.  Thereupon  the  court  determined  that 
the  contract  was  entire  for  the  use  of  the  barge  to  be  re- 
turned in  a  reasonable  time;  that  if  it  were  not  so  returned 
there  might  be  an  action  for  breach  of  contract  for  its 
return;  that  the  right  of  the  party  was,  not  to  exact  ten 
dollars  per  day  perpetually,  but  to  charge  that  for  a  rea- 
sonable time;  that  his  former  action,  in  effect,  averred 
that  the  reasonable  time  had  expired,  and  that  the  whole 
debt  was  then  due,  and  therefore  that  his  former  recovery 
merged  his  entire  claim  to  recover  for  the  use  of  his  barge 
under  the  contract.^ 

Judgment  for  a  breach  of  a  covenant  in  a  lease  is  a  bar 
to  an  action  for  any  other  breach  previously  committed.^ 
This  doctrine,  though  well  sustained,  is  pronounced  hereti- 
cal in  Mcintosh  v.  Lown,  49  Barb.  550,  where  the  extreme 
ground  is  attempted  to  be  maintained  that  each  successive 
breach  of  any  contract  constitutes  an  independent  cause 
of  action,  so  that  a  plaintiff,  after  recovering  for  one 
breach  of  a  covenant  in  his  lease,  is  at  liberty  to  recover 
damages  for  any  preceding  breach.  To  the  same  effect  is 
the  opinion  in  the  case  of  Badger  v.  Titcomb,  15  Pick.  409; 
26  Am.  Dec.  611.  There  the  defendant,  being  the  keeper 
of  an  office  for  procuring  crews  for  vessels,  agreed  to  pay 
plaintiff  a  specified  sum  for  each  man  shipped.  The  court 
decided  that  the  plaintiff  could  maintain  an  action  for  the 
breach  of  this  contract,  occurring  antecedent  to  another 
breach,  upon  which  judgment  has  been  obtained.'  Of 
course  the  recovery  upon  a  contract  does  not  affect  any 
distinct  cause  of  action  subsequently  accruing.     Thus  an 

'  stein  V.  The  Prairie  Rose,  17  Ohio  6    Hill,    54;   Stuyvesant  v.  Mayor  of 

St.  475;  93  Am.  Dec.  6.31.  N.  Y.,  11  Paige,  414. 

^  Beiulernagle    v.   Cocks,   19  Wend.         '  Perry  v.    Harrmyton,  2  Met.   3GS; 

207;  32  Am.  Dec.  448;  Fish  v.  Foiley,  37  Am.  Dec.  98. 


§  241        MERGER,  OR  FORMER  RECOVERY.  422 

indorser  who,  upon  being  compelled  to  pay  part  of  a  note, 
recovers  the  amount  paid,  from  a  second  indorser,  will, 
when  obliged  to  pay  the  balance,  be  in  condition  to  suc- 
cessfully prosecute  another  action  against  the  second  in- 
dorser/ Presenting  an  entire'demand  as  a  defense  to  an 
action  or  as  a  set-off,  and  its  partial  allowance,  merges  the 
whole  demand.  When  the  set-off,  being  fully  established, 
exceeds  the  plaintiff's  demand,  the  defendant  cannot  in  a 
subsequent  action  recover  the  excess.^ 

§241.  Indivisible  Demands  Ex  Delicto.  —  The  rule 
that  one  cause  of  action  cannot  be  split  into  several  is  as 
applicable  to  actions  ex  delicto  as  to  those  ex  contractu.  A 
single  tort  can  be  the  foundation  for  but  one  claim  for 
damages.^  A  judgment  for  plaintiff  in  replevin  for  a  por- 
tion of  the  things  taken  is  a  bar  to  a  subsequent  action 
for  damages  for  the  same  taking,  it  not  being  shown  that 
any  of  the  things  not  recovered  in  the  former  action  were 
concealed  or  so  disposed  of  that  as  to  them  the  replevin 
would  not  lie.*  The  rule  is  without  exception  that  if  sev- 
eral chattels  are  taken  at  the  same  time,  a  recovery  of  any 
of  them,  whether  in  trespass  or  in  trover,  merges  the 
entire  demand  arising  out  of  the  taking,  and  no  further 
recovery  can  be  had  in  any  form  of  action.^  The  pro- 
priety of  this  rule  is  manifest.  To  allow  as  many  suits 
to  be  prosecuted  as  there  are  articles  taken  or  detained  by 
the  defendant  would  be  to  inflict  upon  him  a  penalty 
more  serious  than  any  authorized  by  the  penal  laws,  and 
to  obstruct  the  tribunals  of  justice  with  a  cloud  of  petty 
cases,  supported  by  the  same  facts  and  involving  the  same 
legal    principles.     "It    would   be  outrageous  to  allow  a 

'  Wright  V.  Butler,  6  Wend.  284;  21  252;    46   Am.    Dec.    150;    Karhler   v. 

Am.  Dec.  323.  Dobberpulil,  60  Wis.  256. 

»  Simes  v.  Zane,  24  Pa.  St.  242;  In-  *  Bennett  v.   Hood,   1  Allen,  47;  79 

slee  V.  Hampton,  11  Hun,  156;  O'Con-  Am.  Dec.   105;  Herriter  v.  Porter,  23 

nor?'.  Varney,  11  Gray,  231.  Cal.  .S85. 

^  Wichita  &  W.  R.  R.  Co.  v.  Beebe,  39  ^  Union  R.  R.  Co.  v.  Traube,  59  Mo. 

Kan.  465;  Saddler  z).  Apple,  9  Humi)h.  355;    O'Neal   v.   Brown,    21    Ala.    482; 

3i2;  Whitney   v.    Clarendon,    18   Vt.  McCaffrey  v.  Carter,  125  Masd.  330. 


423  MERGER,  OR  FORMER  RECOVERY.        §  241 


*■ 


thousand  actions  for  taking  a  thousand  barrels  of  flour."* 
When  a  house  and  a  shop  were  burned  by  the  same  fire, 
through  the  negligence  of  defendant's  servants,  a  judg- 
ment for  the  damages  occasioned  by  the  burning  of  the 
shop  was  adjudged  to  be  a  bar  to  a  recovery,  in  a  subse- 
quent  action,  for  the  destruction  of  the  house.'^     If  the 
defendant  stopped  the  plaintiff's  wagon   and   team   and 
forcibly  took  a  horse  therefrom,  and  the  plaintiff  sued  in 
trover  and  recovered  for  the  taking  of  the  horse,  he  can- 
not thereafter  recover  in  trespass  for  his  injuries  suffered 
from  the  stopping  of  the  wagon  and  team,  for  all  that  the 
defendant  did  was  but  one  continuous  tortious  act.*    After 
recovering  judgment  for  malicious  prosecution,  the  plain- 
tiff cannot  sustain  an  action  for  slander,  consisting  of  pre- 
ferring the  charge  on  which  the  malicious   prosecution 
took  place;  but  slander  consisting  of  subsequent  repeti- 
tions of  the  charge  is  not  merger  in  the  judgment  for 
malicious  prosecution.*     All  the  damages  which  can  by 
any  possibility  result  from  a  single  tort  form  an  indivis- 
ible cause  of  action.^     Every  cause  of  action  in  tort  con- 
sists of  two  parts,  to  wit,  the  unlawful   act,  and  all  the 
damages  which  can  arise  out  of  it.     For  damages  alone, 
no  action  can   be  permitted.     Hence  if  a  recovery  has 
once  been  had  for  the  unlawful  act,  no  subsequent  suit 
can  be  sustained.     There  must  be  a  fresh  act  as  well  as  a 
fresh  damage.^     A  recovery  in  trover  for  the  conversion 
of  slaves  is  a  bar  to  any  claim,  either  for  trespass  in  for- 
cibly taking  them,  or  in  assumpsit  for  the  value  of  their 

1  Farrington  v.  Payne,  1 5  Johns.  432;  '  Trask  v.  Railroad,  2  Allen,  331. 

8  Am.  Dec.  261 ;  Bates  v.  Quattleboue,  »  Kite  v.  Long,  6  Rand.  457;  18  Am. 

2  Nott  &  McC.  20.5;  Cracraft  v.  Coch-  Dec.  719.                                 or    xr     v 

ran,    16   Iowa,    301;    Cunnincrham    v.  *  Rockwell    v.   Brown,    36    IN      Y. 

Ha;ri.s,  5  Cal.  81;  Veghte  ..  Hoagland.  207;   Jarmgan   t;.   Flemnig     43   Miss. 

29  N.  J.  L.  125;  Buckland  i».  Johnson,  710;    5    Am     Rep     514;    Sheldon    w. 

15  Com.  B.  145.     A  recovery  for  the  Carpenter,  4  N.  Y.  579;  55  Am.  Dec. 

conversion  of  certain  chattels  bars  any  301.                  -r.  u    4.     op.o„17o.  M 

sabsequeat  recovery  for  other  chattels  "  Norton  ^Doherty.  3  Gray,  ^72  63 

converted  by  the  same  act,  although  Am.  Dec.  758;  Stickney  v.  Goudy.  132 

the  plaiutifif  was  prevented   from  111-  HI- 21.i.              c.  „  i,„_<,    n     Ad     A- 

eluding  them  in  the   former  suit,  by  «  Hcdsoll  v.  Stallebrass,   11    Ad.  & 

the  fraud  of  the  defendant:  McCaffrey  E.  301. 
V.  Carter,  125  Mass.  330. 


§  241        MERGER,  OR  FORMER  RECOVERY.  424 

services  during  the  period  of  their  conversion.*  Judg- 
ment upon  contract  for  breach  of  agreement  in  not  dis- 
charging an  execution  merges  the  claim  for  damages 
occasioned  by  an  arrest  under  the  same  execution.'^  If  a 
fire  is  started  by  a  locomotive-engine  under  such  circum- 
stances as  to  make  its  owner  answerable,  all  damages 
resulting  to  one  person  by  the  act  must  be  recovered  in 
one  judgment,  although  the  fire  was  communicated  to  two 
tracts  of  land  situate  a  considerable  distance  from  each 
other.^  A  recent  case  is  difiicult  to  reconcile  with  the 
principle  we  have  here  stated  and  illustrated.  A  hus- 
band and  wife,  while  riding  as  passengers  in  a  railway 
car,  suffered  injuries  from  the  same  negligence.  He 
brought  an  action  and  recovered  judgment  for  his  per- 
sonal injuries,  and  thereafter  commenced  another  action, 
seeking  compensation  for  the  loss  of  the  services  and  so- 
ciety of  his  wife,  caused  by  her  being  injured  at  the  same 
time  with  him,  and  for  the  expense  to  which  he  was  put 
in  providing  her  with  physicians,  medicines,  and  care. 
The  former  recovery  being  pleaded  in  bar,  the  appellate 
court  decided  the  plea  not  to  be  sustained,  on  the  ground 
that  to  entitle  him  to  recover  in  the  former  action,  it  was 
not  necessary  for  him  to  show  that  he  had  lost  the  society 
or  services  of  his  wife,  or  that  she  had  been  injured;  that 
the  loss  of  the  services  and  society  of  his  wife  was  an  en- 
tirely different  cause  of  action  from  the  injury  to  himself, 
and  did  not  occur  until  after  such  injury,  nor  result 
therefrom  or  pertain  thereto.* 

The  fact  that  the  damages  now  sought  to  be  compen- 
sated had  not  become  apparent  when  the  former  judgment 
was  obtained  does  not  form  any  exception  to  the  rule.^ 
Thus  where  the  defendant  had  made  an  excavation  into 

^  Cook  V.  Cook,  2  Brev.  349;  Thomp-  *  Skoglund    v.    Minneapolis    Street 

son  V.  Rosers,  2  Brev.  410;  Yowle  v.  R'y  Co.,  45   Minn.  330;  22   Am.   St. 

N.  H.  &  N.  Co.,  107  Mass.  352;  Smith  Rep.  733. 

V.  G.  W.  R'y  Co.,  6  U.  C.  C.  P.  156.  ^  Watson  v.   Van   Meter,  43  Iowa, 

^  Smith  w.'Way,  9  Allen,  47-2.  76;  Fowle  v.  New  Haven,   107  Mass. 

s  Knowlton  v.  N.  Y.  &  N.  E.  R.  R.  352;    Clegg    v.    Deardeu,     12    Q.    B. 

Co.,  147  Mass.  606.  676. 


425  MERGER,  OR    FORMER    RECOVERY.  §  241 

plaintiff's  coal  mine,  tlirougli  which  water  flowed,  and 
plaintiff  recovered  damages  for  making  the  aperture,  and 
afterward  brought  another  action  to  obtain  compensation 
for  damages  occasioned  by  the  flowing  of  water  through 
the  opening  into  his  mine,  it  was  held  that  as  defendant 
was  under  no  legal  obligation  to  close  the  excavation,  no 
fresh  act  had  been  done,  and  no  further  suit  could  be  main- 
tained.^ In  this  case  the  damages  upon  which  the  second 
suit  was  based,  though  accruing  subsequent  to  the  com- 
mencing of  the  first  suit,  were  the  natural  and  inevitable 
result  of  the  excavation.  The  absence  of  that  fact,  how- 
ever, would  not  have  changed  the  result.  The  rule  yields 
to  no  hardship.  Unforeseen  and  improbable  injuries  re- 
sulting from  any  act  are,  equally  with  existing  and  probable 
injuries,  parts  of  an  inseverable  demand.  After  judgment 
recovered  for  an  assault  and  battery,  parts  of  the  plain- 
tiff's skull  came  out,  and  he  sought  to  recover  for  the 
damage  thus  occasioned,  and  it  was  decided  that  he  could 
not,  because  the  defendants  had  not  committed  any  fresh 
wrong.^  The  principles  of  this  case  were  afiirmed  by  a 
majority  of  the  judges  of  the  supreme  court  of  Vermont.' 

^  Watson  V.  Van  Meter,  43  Iowa,  76;  rulings  or  instructions  of  the  court  in 
Fowle  V.  New  Haven,  107  Mass.  352;  this  behalf,  so  far  as  relates  to  any 
Clegg  V.  Dearden,  12  Q.  B.  576.  damage  accruing  to  either  of  plaintiff's 
*  Fetter  v.  Eeale,  Salk.  11.  lots  prior  to  and  up  to  the  time  of  filing 
3  Whitney  v.  Town  of  Clarendon,  IS  his  complaint  or  making  his  settlement 
Vt.  252;  46  Am.  Dec.  150.  A  some-  in  the  former  action.  The  elements  of 
■what  extreme  application  of  the  rule  his  damage  up  to  that  time  may  have 
that  from  one  tort  but  one  cause  of  been  multifarious,  but  the  cause  of  it 
action  can  arise  was  made  in  Beronio  was  a  unit, — the  constructi(m  and 
V.  Southern  Pac.  R.  R.  Co.,  86  Cal.  415;  operation  of  a  single  raih-oad  which 
21  Am.  St.  Rep.  57.  The  plaintiff  sued  was  complete  at  the  time.  The  fact 
to  recover  damages  for  the  construe-  that  it  damaged  two  lots  belonging  to 
tion  of  a  railway  in  front  of  a  lot  in  the  same  man,  at  the  same  time  and 
block  20  in  the  town  of  San  Buenaven-  by  the  same  means,  no  more  created 
tura.  In  defense  of  this  action  the  two  causes  of  action  than  if  two  horses 
defendant  showed  that  it  had  con-  belonging  to  the  same  man  had  been 
structed  its  railroad  in  front  of  a  lot  killed  by  a  single  collision  with  a  loco- 
belonging  to  plaintiff,  in  lot  19;  that  motive,  and  this  has  been  held  to  con- 
plaintiff  had  sued  for  and  recovered  stitute  but  a  single  cause  of  action: 
damages  suffered  to  the  latter  lot;  and  Brannenburg  v.  Indianapolis  etc.  K.  R. 
the  claim  was  made  that  all  the  dam-  Co.,  13  Ind.  103;  74  Am.  Dec.  250. 
awes  suffered  by  the  plaintiff  from  the  In  cases  of  tort,  the  question  as  to  the 
location  of  the  road  constituted  a  sin-  number  of  causes  of  action  which  the 
gle  indivisible  cause  of  action.  The  same  person  may  have  turns  upon  the 
court  sustained  this  defense,  saying:  number  of  the  torts,  not  upon  tiie  num- 
••  We  think  there  was  no  error  in  the  bcr  of  diflcreut  pieces  of  property  which 


§  242        MERGER, OR  FORMER  RECOVERY.  426 

The  cLief  justice,  however,  dissented.    He  contended  that 
there  could  not  have  been  any  recovery  for  this  damage 
in  the  first  action,  because  it  had  not  then  arisen;  and 
that  tlie  law  ought  not  to  be  so  construed  as  to  require 
juries  upon  the  trial  of  actions  to  estimate  prospective 
damages.     The  injustice   of  such  a  requirement  is  self- 
evident.     No  case  can  arise  involving  claims  for  serious 
injuries  to  the  person  in  which  the  assessment  of  damage, 
as  the  law  now  stands,  can  be  otherwise  than  imperfect 
and  unfair.     In  the  majority  of  cases,  defendants  must 
pay    for    damages    which   never    develop;    while   in    the 
minority,  the  most  serious  injuries  must  be  borne  with- 
out compensation.     A  recovery  in  an  action  for  false  im- 
prisonment, brought  during  the  imprisonment,  does  not 
merge  any  claim  for  damages  for  the  continuance  of  the 
same  imprisonment.*     In  an  action  for  malicious  prose- 
cution the  plaintiff  may,  in  addition  to  the  damages  occa- 
sioned by  the  unlawful  arrest  and  detention,  recover  for 
injury  to  his  reputation  by  reason  of  the  false  accusation. 
Therefore  a  judgment  for  false  imprisonment  is  a  bar  to 
an  action  of  slander  for  the  same  accusation  on  which  the 
imprisonment  was  procured.^     But  such  a  judgment  is  no 
bar,  if  the  utterances  complained  of,  though  of  the  same 
character  and  purport,  were  made  at  a  different  time  from 
the  accusation  by  means  of  which  the  false  imiDrisonment 
was  occasioned.* 

§  242.  Cases  of  Nuisance.  —  In  cases  of  nuisance,  the 
injury  may  be  of  two  kinds:  1.  The  injury  produced  by 
the  act;  and  2.  That  occasioned  by  the  continuing  of  the 
nuisance  produced  by  the  act.  For,  while  a  trespasser  is 
under  no  obligation  to  rebuild  or  replace  what  he  has  torn 

may  have  been  injured.     Each  sepa-  Marble  v.  Keyes,  9  Gray,  221,  and  in 

rate  tort  gives  a  separate  cause  of  ac-  very  many  other  cases.    There  is  noth- 

tion,  and  bvit  a  single  one:  1  Sutherland  ing  in  the  authorities  cited  by  appel- 

on    Damages,    183,    aud    cases    cited,  lant  in  conflict  with  this  view. " 

Whenever  by  one  act  a  permanent  in-  '  Leland  v.  Marsh,  16  Mass.  oS9. 

jury  is  done,  the  damages  are  assessed  "■'  Carpenter    v.   Sheldon,    i    N.    Y, 

once  for  all:  3  Sutherland  on  Damages,  579. 

372.     This  principle  is  established  iu  ^  Rockwell  v.  Brown,  36  N.  Y.  207. 


427  MERGER,  OR    FORMER    RECOVERY.  §  242 

down  or  destroyed,  lie  who  creates  a  nuisance  is  under 
a  continuing  obligation  to  abate  it/  Therefore  only  the 
damage  done  at  the  date  of  the  writ  can  be  compensated 
in  that  suit.  If  that  damage  exposes  the  plaintiff  to  the 
expenditure  of  money,  he  may  recover  the  full  amount 
which  he  is  liable  to  expend,  whether  it  has  been  already 
paid  out  or  not.  The  material  inquiry  in  the  second 
action  is,  whether  the  damages  on  w^hich  it  is  based  are 
attributable  to  the  original  act,  or  to  the  continuing  of  the 
state  of  facts  produced  by  that  act.  In  the  latter  case  a 
new  cause  has  arisen,  and  a  new  action  will  lie.  "There 
may,  of  course,  be  cases  where  it  may  be  difficult  to  draAV 
the  line,  but  it  is  apprehended  they  will  not  be  numerous. 
Wherever  the  nuisance  is  of  such  a  character  that  its  con- 
tinuance is  necessarily  an  injury,  and  where  it  is  of  a  per- 
manent character,  that  will  continue  without  change  from 
any  cause  but  human  labor,  there  the  damage  is  an 
original  damage,  and  may  be  at  once  fully  compensated, 
since  the  injured  person  has  no  means  in  his  power  ,to 
compel  the  individual  doing  the  wrong  to  apply  the  labor 
necessary  to  remove  the  cause  of  injury,  and  can  only 
cause  it  to  be  done,  if  at  all,  by  the  expenditure  of  his 
own  means.  But  where  the  continuance  of  such  act  is 
not  necessarily  injurious,  and  w^here  it  is  necessarily  of  a 
permanent  character,  but  may  or  may  not  be  injurious, 
or  may  or  may  not  be  continued,  there  the  injury  to  be 
compensated  in  a  suit  is  only  the  damage  that  has  hap- 
pened. Thus  the  individual  who  so  manages  the  water  he 
uses  for  his  mills  as  to  wash  away  the  soil  of  his  neighbor 
is  liable  at  once  for  all  the  injury  occasioned  by  its  re- 
moval, because  it  is  in  its  nature  a  permanent  injury; 
but  if  his  works  are  so  constructed  that  upon  the  recur- 
rence of  a  similar  freshet  the  water  will  probably  wash 
away  more  of  the  land,  for  this  there  can  be  no  recovery 
until  the  damage  has  actually  arisen;  because  it  is  yet 
contingent  whether  any  such  damage  will  ever  arise.     If 

1  Clegg  V.  Doarden,  12  Q.  B.  576. 


§  242  MERGER,  OR    FORMER   RECOVERY.  428 

a  person  erects  a  dam  upon  his  own  land,  which  throws 
back  the  water  upon  his  neighbor's  land,  he  will  be  an- 
swerable for  all  damage  which  he  has  caused  before  the 
date  of  the  writ,  and,  ordinarily,  for  no  more,  because  it 
is  as  yet  contingent  and  uncertain  whether  any  further 
damage  will  be  occasioned  or  not,  because  such  a  dam  is 
not,  of  its  own  nature  and  necessarily,  injurious  to  the 
lands  above,  since  that  depends  more  upon  the  manner 
in  which  the  dam  is  used  than  upon  its  form.  But  if 
such  a  dam  is  in  its  nature  of  a  permanent  character, 
and  from  its  nature  must  continue  permanently  to  affect 
the  value  of  the  land  flowed,  then  the  entire  injury  is  at 
once  occasioned  by  the  wrongful  act,  and  may  be  at  once 
recovered  in  damages."^  Thus  where,  in  building  a 
canal,  a  river  is  dammed  as  a  feeder  to  the  canal,  and  the 
lands  of  an  adjacent  owner  are  permanently  flooded,  he 
cannot  recover  each  year  the  damage  occasioned  by  the 
non-use  of  the  land  for  that  year,  but  must  at  one  time 
recover  the  damages,  to  wit,  the  full  value  of  the  land. 
But  when  a  dam  is  built,  or  a  canal  dug,  or  a  structure 
erected  which  may  or  may  not  do  damage  of  a  particular 
character,  then  each  recurring  damage  constitutes  a  new 
cause  of  action  justifying  a  new  recovery.^ 

When  proceedings  in  the  exercise  of  the  right  of  emi- 
nent domain  are  prosecuted,  the  parties  affected  must 
then  recover  all  damages  M^hich  are  the  natural  and  rea- 
sonable results  of  the  improvement  contemplated;  but  if 
it  is  afterwards  constructed  or  maintained  in  an  unskill- 
ful and  negligent  manner,  an  additional  recovery  may  be 

1  Troy   V.   Cheshire   R.    R.  Co.,  23  Iowa,  659;  7  Am.  St.  Rep.  501;  Har- 

N.  H.  83;  55  Am.  Dec.  177;  St.  Louis  bach  v.  Des  Moines  etc.  R.  R.  Co.,  80 

etc.  R.  R.  Co.  V.  Biggs,  52  Ark.  240;  Iowa,  593;  Athens  Mfg.  Co.  v.  Rucker, 

20   Am.    St.   Rep.   174;    Chicago   etc.  80  Ga.  291;  Valley  R.  R.  Co.  u  Franz, 

R.  R.  Co.  V.  McAuley,   121  111.   160;  43  Ohio  St.  623;  Reid  v.   City  of  At- 

Stadlerr.  Grieben,  61  Wis.  500;  Rams-  lanta,   73   Ga.    523;    Colrick   v.   Swin- 

dale  V.  Foote,  55  Wis.  557;  Miller  v.  bourne,  105  N.  Y.  503;  Werges  v.  St. 

Keokuk  R.  R.  Co.,  63  Iowa,  680.  Louis  etc.  R.  R,  Co.,  35  La.  Ann.  641 ; 

^  St.  Louis  etc.  R.  R.  Co.  v.  Biggs,  Omaha  etc.   R.  R.  Co.  v.   Standen,  22 

52    Ark.  240;    20    Am.   St.    Rep.    174;  Neb.  343;  Stodgill  u.  C,  B.,  &  Q.  R.  R. 

SuUens  v.  Chicago  etc.  R.  R.  Co.,  74  Co.,  53  Iowa,  341. 


429  MERGER,  OR    FORMER    RECOVERY.  §   243 

had  for  resulting  damages.'  A  railroad  must  be  regarded 
as  permanent  in  its  nature,  and  not  as  intended  to  affect 
some  temporary  purpose,  after  which  it  is  to  be  discon- 
tinued. The  damage  occasioned,  therefore,  to  a  roadway 
and  bridge  by  the  construction  of  a  railroad  track  over 
them  must  be  estimated  for  a  permanent  appropriation. 
Parties  affected  by  such  appropriation  are  entitled  to  re- 
cover at  once  their  full  damages,  and  if  they  recover  any 
part,  they  cannot  further  recover  in  a  subsequent  action.^ 
The  cases  in  which  different  recoveries  have  been  sus- 
tained for  the  results  of  the  same  permanent  nuisance 
have  chiefly  been  where  water,  as  the  result  of  unusual 
freshets,  has  done  damage,  and  it  was  not  possible  to 
know,  when  the  nuisance  was  erected,  whether  it  would  do 
the  damage  afterwards  resulting  from  it,  or  if  so,  when  or 
how  frequently.  Generally,  when  a  nuisance  of  a  perma- 
nent character  is  erected,  all  the  damages  which  its 
continuance  in  the  same  form  will  produce  must  be 
compensated  in  one  action.^  Thus  if  a  ditch  is  dug,  a 
street  graded,  or  an  embankment  built,  whereby  plaintiff's 
lands  will  necessarily  be  flooded  or  washed  away,  or  the 
waters  of  a  stream  to  which  he  is  entitled  necessarily 
diverted,  all  his  damages  must  be  embraced  in  one  judg- 
ment.* So  for  the  deterioration  in  value  of  plaintiff's 
premises  by  the  erection  and  maintenance  of  gas-works, 
he  can  have  but  one  action.^ 

§  243.  Separate  Torts  and  Contracts.  —  But  separate 
torts  give  rise  to  separate  causes  of  action,  and  each  cause 
remains  unaffected  by  a  judgment  for  any  other  tort  sub- 

1  Denver  C  I  &  W.  Co.  v.  Mid-  *  Powers  v.  Council  Bluffs,  45  Iowa, 
daugh,  12  Col.  434;  13  Am.  St.  Rep.  652;  24  Am.  Rep.  792;  Sto.lgill  v. 
234;  Chicago  etc.  R.  R.  Co.  v.  Schatfer,  Chicago  etc.  R.  R.  Co.,  53  Iowa,  4bl; 
124  111    112  North    Vernou   v.    Voegler,    lO.i   Ind. 

2  Town  of  Troy  v.  Cheshire  R.  R.  314;  Bizer  v.  Ottumwa  H.  Co.,  70 
Co.,  23  N.  H.  83;  55  Am.  Dec.  177;  Iowa,  145;  Haisch  v.  Keokuk  R.  R. 
Chicago  etc.  R.  R.  Co.  v.  McAuley,  Co.,  71  Iowa,  600;  St.  Louis  etc.  R.  R. 
121  111.  160;  Chicago  etc.  R.  R.  Co.  v.  Co.  v.  Morris,  35  Ark.  622. 

Loel),  118  111.  203;  59  Am.  Rep.  341.  "  Decatur  G.  L.  &  C.  Co.  V.  Uowell, 

5  Chicago  etc.  R.  R.  Co.  v.  SchalTer,     92  IIL  19. 
124  111.  112. 


§  244  MERGER,  OR    FORMER    RECOVERY.  430 

sequent  or  antecedent.  One  against  whom  or  against 
whose  property  distinct  and  sej^arate  tortious  acts  have 
been  committed  has  a  cause  of  action  for  each;  and  a  re- 
covery for  one  does  not  bar  a  recovery  for  another,  wliether 
committed  before  or  after  the  commencement  of  the  action 
in  which  the  recovery  was  had.^  Thus  a  sailor  who  has 
maintained  an  action  in  a  court  of  admiralty  for  an  assault 
and  battery  committed  on  the  high  seas  is  not  thereby 
precluded  from  obtaining  in  a  common-law  court  a  judg- 
ment for  an  assault  and  imprisonment  on  shore  during 
the  same  voyage.^  But  where  A  took  a  bond,  conditioned 
that  B  should  abstain  from  injuring  certain  property,  a 
recovery  under  the  bond  was  held  to  estop  A  from  obtain- 
ing compensation  for  any  injury  committed  after  taking 
the  bond,  and  before  the  commencement  of  the  first  suit; 
that  while  A  could  have  separately  recovered  for  each  dis- 
tinct injury,  independent  of  the  bond,  yet  having  elected 
to  proceed  under  the  bond,  he  was  bound  by  that  elec- 
tion, and  could  neither  sustain  another  action  upon  the 
bond,  nor  disregard  it  by  proceeding  upon  the  tort  alone.' 
But  if  one  is  liable  to  another  on  several  distinct  contracts, 
express  or  implied,  he  may  maintain  an  action  upon  eaeh;^ 
and  for  each  'breach  of  the  same  contract  may  have  a 
separate  recovery,^  except  that  if  he  waits  until  two  or 
more  breaches  have  occurred,  he  must  unite  all  upon 
which  he  then  has  a  right  of  recovery. 

§  244.  Exceptions  to  General  Law  of  Merger.  —  The 
law  of  merger  as  applied  to  judgments  does  not  forbid  all 
inquiry  into   the  nature  of  the   cause  of  action.      Such 

'  Williams  v.  Hay,  120  Pa.  St.  485;  447;  Eastman  v.   Porter,   14  Wis.   39; 

6  Am.  St.  Rep.  719;  Pishaway  y.  Ruu-  Bliss  v.  Weil,  14  Wis.  35;  80  Am.  Dec. 

nels,   71    Tex.    352;    De   la  Guerra  v.  7b6;  White  v.  Smith,   33  Pa.  St.  186; 

Newhall,  55  Cal.  21;  Whiter.  Moseley,  75  Am.  Dec.  589;  Kronshage  v.  Chi- 

8  Pick.  .350;  Lenoir's  Adm'rj;.  Wilson,  cage   etc.    R.    R.    Co.,    45   Wis.    500; 

36  Ala.  600.  ante,  sec.  238. 

2  Adams  V.  Haffards,  20  Pick.  127.  ^  McEvoy  v.    Bock,  37   Minn.   402 

»  Goodrich  v.  Yale,  97  Mass.  15.  Insurance  Co.  v.  Alges,  31  Pa.  St.  446 

*  Stark  V.  Stark,  94  U.  S.  477;  Phil-  Andrew   v.    Schmidt,    64    Wis.     664 

lips  V.   Berick,  16  Johns.   136;  8  Am.  Givens   v.  Peake,  1  Dana,  225;   ante, 

Dec.  299;  Flaherty  v.  Taylor,  35  Mo.  sec.  240. 


431  MERGER,  OR   FORMER    RECOVERY.  §  245 

inquiry  may  be  prosecuted  for  any  purpose  consistent  with 
the  judgment;  and  is  frequently  necessary  to  its  interpre- 
tation. The  place  where  a  contract  was  made  may  be 
ascertained,  in  order  that  the  lex  loci,  which  was  a  part  of 
the  contract,  may  have  its  effect  upon  the  judgment.  If 
the  prevailing  party  was  entitled  to  certain  privileges  or 
exempted  from  certain  burdens  under  his  contract,  he 
may  be  entitled  to  the  same  privileges  and  exemptions,  in 
many  cases,  under  his  judgment.  And  whenever  justice 
requires  it,  judgments  will  generally  be  construed,  not  as 
a  new  debt,  but  as  an  old  debt  in  a  new  form.^ 

§  245.  Doctrine  of  Merger  Modified  in  Proceedings  in 
Bankruptcy.  —  In  no  class  of  cases  has  the  technical 
operation  of  the  doctrine  of  merger  been  so  frequently 
limited  as  in  those  where  the  effect  of  a  discharge  of  a 
debtor  under  laws  for  the  relief  of  insolvents  had  to  be 
determined.  In  many  cases,  judgments  entered  subse- 
quently to  the  filing  of  the  debtor's  petition  have  been 
deemed  to  be  beyond  the  scope  of  his  discharge,^  while  in 
a  still  greater  number  of  cases  it  has  been  held  that  when- 
ever a  cause  of  action,  existing  at  the  time  of  the  filing  of 
the  debtor's  petition,  was  of  such  a  nature  that  the  dis- 
charge would  have  affected  it,  any  judgment  recovered 
thereon  prior  to  the  decree  of  discharge  will  be  affected  to 
an  equal  extent;  and  that  within  the  meaning  of  those 
laws  such  judgments  are  never  to  be  regarded  as  new 
debts  arising  subsequently  to  the  filing  of  the  petition.^ 

»  Evans  v.  Sprigs;,  2  Md.  457;  AVy-  Clark  v.  Rowlinsj,  3  N.  Y.    216;   53 

inan«.  Mitchell,  1  Cow.  316;  Clark  v.  Am.   Dec.   290;  Rogers  t;.   Ins.   to.,    1 

Bowlin"    3  N    Y    216.  La.  Ann.  161;  Dick  v.  Powell,  2  Swan, 

^  Bra'lford  v.  Rice,  102  Mass.  472;  632;  Stratton  v.  Ferry,  2  Tenn.  Cli. 
3  Am  Rep  4s3;  Ellis  v.  Ham,  28  Me.  683;  Harrington  v.  McNaughton,  20 
385-  Kellofrg  „.  Schuyler,  2  Uenio,  73;  Vt.  293;  McDonald  v.  Iiigraham,  30 
Uran  v.  Houdlette,  36  Me.  15;  Roden  Miss.  389;  64  Am.  Dec.  166;  Betts  v. 
V.  Jaco,  17  Ala.  344;  Pike  v.  McDon-  Bagley,  12  P.ck.  572;  Raymond  v 
aid  3-^  Me  418-  54  Am.  Dec.  597;  Merchant,  3  Cow.  147;  Fox  v.  Wood- 
Woodbury  V.  Perkins,  5  Cush.  86;  51  bury,  9  Barb.  498;  Dresser  v.  Brooks, 
Am.  Dec.  51;  Cutter  z;.  Ev=uis,  115  3  Barb.  429:  Anderson  v  And.r- 
Mass.  27;  McCarthy  v.  Goodwin,  8  son,  05  Ga.  ol8;  38  Am.  Rep  /J/; 
Mo    Ann    380  Dawson     v.      Hartsheld,     79     JN.     C. 

^Bhuiford   'v.   Foote,   1    Cowp.    138;  334;  Stockwell  v.   Woodward,  52  Vt. 

Imlav  V   Carpenter,  14  Cal.  173;  John-  234;  Dinsdale  v.  Lames,  4  Moore,  3y0; 

eon  V.    Fitzlmgh,   3    Barb.    Ch.   3G0;  2  Bred.  &  B.  8. 


§  245        MERGER,  OR  FORMER  RECOVERY.         432 

If  a  statute  authorizing  the  granting  of  discharges  in 
bankruptcy  or  insolvency  excepts  from  its  operation  debts 
of  a  particular  character,  and  those  debts  have  merged 
into  judgments,  the  question  arises  whether  they  have 
become  new  obligations,  so  as  to  be  brought  within  the 
operation  of  the  discharge.  The  opinion  generally  pre- 
vailing upon  this  subject  is,  that  the  judgment  retains  the 
character  of  the  indebtedness  out  of  which  it  arose,  and 
is  not  discharged  unless  that  indebtedness  would  have 
been  discharged  had  no  judgment  been  recovered  thereon.^ 
Whether  a  contract  made  in  another  state  and  reduced  to 
judgment  in  this  loses  its  rights  to  protection  against  in- 
solvency laws  is  a  difficult  question  to  answer.  In  one 
case  it  was  held  not  liable  to  be  discharged  by  insolvency 
laws  of  the  state  where  the  original  indebtedness  arose,'^ 
while  in  another  case  it  was  held  to  be  affected  by  such 
discharge  if  both  parties  still  resided  in  the  state  wherein 
it  was  granted.'  If,  however,  a  creditor  who  is  a  citizen 
of  another  state  sues  in  this  and  recovers  judgment  here, 
we  think  he  does  not  thereby  submit  either  himself  or 
his  indebtedness  to  the  jurisdiction  of  this  state  to  the 
extent  that  it  can  discharge  his  indebtedness  under  its  in- 
solvency laws,  and  that  if  it  is  beyond  the  power  of  this 
state  to  grant  a  discharge  in  insolvency  operative  against 
the  original  debt,  it  is  equally  beyond  its  power  to  grant 
a  discharge  against  a  judgment  recovered  thereon  in  this 
state  by  one  who  continues  to  be  a  citizen  of  another 
state.^ 

»  Donald  v.  Kell,  111  Ind.  1;  Horner  cott  v.  Hodge,  15  Gray,  547;  77  Am. 

V.    Spellman,    78    111.    5*06;    Wade   v.  Dec.  381;  Bradford  w.  Rice,  102  Mass. 

aark,  52  Iowa,  158;  35  Am.  Rep<  262;  472;  3  Am.  Rep.  483. 
Howland  v.  Carson,  28  Ohio  St.  625;         ^  Green  v.  Sarmiento,  3  Wash.  17. 
Carit  V.  Williams,  74  Cal.  183;  Matter         '  Betts  v.  Bagley,  12  Pick.  580. 
of  Patterson,  2  Ben.   156;  Simpson  r.         *  Murphy  v.    Manuiag,    134   Mass. 

Simpson,  80  N.  C.  332.     CoiUra,  Wol-  488. 


433  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  246 

CHAPTER  XII. 

THE  .TUDGMENT  AS  AN  ESTOPPEL. 

Part  L— NATURE  AND  EXTENT  OF  JUDGMENT  ESTOPPELS. 
§  246.      Definition  of  estoppel. 
§  247.     Judgment  estoppel  not  odious. 
§  248.      Decrees  —  Estoppels  in  equity. 
§  249.     General  extent  of  judgment  estoppel. 

Part  II. —REQUISITES  TO  JUDGMENT  ESTOPPEL. 

§  250.  Must  be  free  from  fraud  and  collusion, 

§  251.  Must  be  a  final  adjudication. 

§  252.  Identities  demanded. 

§253.  Identity  of  subject-matter. 

§  254.  Identity  of  purpose. 

§  255.  Identity  of  form. 

§  256.  Identity  of  issues. 

§  257.  Facts  must  have  been  directly  in  issue. 

§  258.  Cannot  extend  to  collateral  questions,  nor  to  matters  inferable  only  by 

argument. 

§  259.  Identity  of  evidence. 

§  260.  Must  arise  from  judgment  on  the  merits. 

§  261.  Motion  for  nonsuit  is  waiver  of  trial  on  the  merits. 
§  261  a.     Estoppel  not  created  by  nonsuit. 

§  262.  Dismissal  by  agreement. 

§  263.  Classification  of  judgments  not  on  the  merits. 

§  264.  Judgments  of  dismissal  for  want  of  jurisdiction,  and  void  judgments. 

§  265.  Judgments  where  remedy  was  misconceived. 

§  266.  Judgment  for  want  of  proper  parties. 

§  267.  Judgments  on  demurrer. 

§  268.  Judgment  in  suits  prematurely  brought. 

§  269.  Claims  not  admissible  under  the  pleadings. 

§  270.  Decree  of  bill  dismissed. 
§  270  a.     Bill  dismissed  before  the  hearing. 

§  271.  Does  not  extend  to  immaterial  findings. 

PartIIL— OF   EVIDENCE   TO  ESTABLISH  OR  REBUT  THE  PRE- 
SUMPTION  OF  RES  JUDICATA. 
§  272.     Whether  matter  in  issue  may  be  shown  to  have  not  been  put  in  evi- 
dence. 
§  273.     Estoppel  may  be  shown  by  parol. 
§  274.     Parol  evidence  to  rebut  presumption  of  estoppeL 
§  275.     Record  not  to  be  impugned. 
§  276.     Onus  of  proof. 

§  276  a.     Where  there  are  two  or  more  defenses  disposed  of. 
JUDQ.  L  — 28 


§  246  THE    JUDGMENT    AS    AN    ESTOPPEL.  434 

Paet  IV.  —  MATTERS    WHICH  DEFEND AlfT    MAY   OR    MAY  NOT 

LITIGATE. 

§  277.     Set-off  not  presented. 

§  278.     Set-off  not  decided. 

§  279.     Set-off  rejected. 

§  280.     Set-off  voluntarily  allowed. 

§  281.     Equitable  defenses. 

§  282.     Cross-claims. 

Paet  V.  —  OF  PLEADING  FORMER  JUDGMENT  AS  AN  ESTOPPEL. 
§  283.     Necessity. 
§  284.     Consequence  of  neglect  to  plead. 

Paet_VL— OF  ACTIONS  TENDING  TO  CONTRADICT  FORMER  AD- 
JUDICATIONS. 
§  284  a.     Defenses  and  causes  of  action  already  adjudicated. 
§  285.     Action  for  payments  not  credited. 
§  286.     Action  for  credits  not  allowed. 
§  287.     Action  for  money  paid  to  satisfy  judgments. 
§  288.     Action  for  money  paid  under  legal  process. 
§  289.     Action  for  obtaining  judgments  by  fraud  or  perjury. 
§  290.     Motions  for  satisfaction. 

§  291.     Taking  judgment  for  sum  paid  as  consideration  for  a  promise. 
§  292.     Exceptional  cases. 

Part  VII.  —  JUDGMENTS  IN  VARIOUS  ACTIONS. 
FiBST.  —  In  Actions  Affecting  the  Title  or  Possession  of  Real  Estate. 

§  293.  Distinctions  applicable  to  real  actions. 

§  294.  Common  recovery. 

§  295.  Ejectment  at  common  law. 

§  296.  Ejectment  at  common  law  on  confession. 

§  297.  Ejectment  at  common  law  —  Evidence  for  mesne  profits. 

§  298.  Ejectment  at  common  law  —  Costs  in. 

§  299.  Ejectment  under  recent  statutes. 

§  300.  Ejectment  under  recent  statutes  —  Pleadings  in. 

§  301.  Ejectment  under  recent  statutes  —  Issues  in. 

§  302.  Ejectment  under  recent  statutes  —  How  estoppel  rebutted. 
§  302  a.     Forcible  entry  and  unlawful  detainer. 

§  303.  Foreclosure  suits. 
§  303  a.     Judgments  affecting  rigbt  to  dower. 

§  304.  Partition. 

§  305.  Partition,  plaintiff  not  in  possession. 

§  306.  Partition  against  persons  not  in  esse.. 

§  307.  Partition  against  persons  unknown. 

§  308.  Partition  final  without  deed. 

§  309.  Quieting  title. 

§  310.  Trespass  on  real  estate  in  other  suits  for  trespass. 

§  311.  In  actions  of  ejectment. 


435  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  246 

Second.  — Judgments  in  Personal  Actions. 

§  312.  Suits  for  breaches  of  warrautiea. 

§  313.  Divorce. 

§  314.  Alimony. 

§  315.  Against  partnership. 

.§  316.  Replevin. 

§  317.  Trespass. 

Third.  —  Criminal  Cases. 
§  318.     Judgments  in,  effect  in  criminal  cases. 
§  319.     Judgments  in,  effect  in  civil  cases. 

Fourth.  —  Probate  Proceedings. 
§  319  a.     Decrees  and  orders  of  probate  courts.. 

Part  Vni.  —  ESTOPPELS  ARISITNG  FROM  MOTIONS  AND  SPECIAL 
PROCEEDIl^GS. 
§  320.     Awards  of  arbitrators. 
§  321.     General  submission  of  demands. 
§  322.     Demands  not  disputed. 
§  323.     Bills  of  review. 
§  324.     Habeas  corpus. 
§  325.     Motions  and  special  proceedings. 
§  326.     Rules  applied  to  motions. 
§  327.     Proceedings  supplementary  to  judgment. 

Part  IX.  —  MISCELLANEOUS  MATTERS 
§  327  a.     Establishing  identity  of  defendant. 
§  328.     Appeal,  effect  of. 
§  329.     After-acquired  rights. 
.§  330.     Defaults  and  admissions. 
§  331.     Defaults  and  admissions,  English  cases  on, 
§  331  a.     Disclaimers  of  title. 

§  332.     Latest  adjudication  prevails  over  prior  ones. 
§  333,     Reversal. 

Part  L— NATURE  AND  EXTENT  OF  JUDGMENT  ESTOPPELS. 

§  246.  Definition  of  Estoppel.  —  Having  treated  of  the 
parties  whose  relation  to  an  adjudication  is  such  as  to 
bind  them  by  the  facts  which  it  necessarily  affirms  to  the 
same  extent  that  the  immediate  parties  to  the  record  are 
bound,  we  come  now  to  the  consideration  of  the  question, 
What  facts  does  a  judgment  or  decree  so  establish  that 
neither  the  parties  nor  their  privies  can  ever  afterward 
gainsay  them?  But  before  undertaking  to  considet  or 
to  answer  the  question,  we  may,  without  wandering  far 
from  our  subject,  show  that  the  word  "estoppel,"  in  the 


§  247  THE    JUDGMENT   AS    AN    ESTOPPEL.  436 

sense  in  which  it  is  defined  by  Lord  Coke,  is  a  term  not 
proper  for  the  designation  of  that  conclusiveness  which 
confessedly  attends  every  final  determination  of  the  rights 
of  the  parties  to  any  action  or  proceeding.  According  to 
that  definition,  an  estoppel  is  "where  a  man  is  not  per- 
mitted to  speak  the  truth."  Whatever  is  settled  by  a 
judgment  is  the  result  of  an  investigation  conducted  un- 
der the  most  favorable  rules  that  mankind  have  been  able 
to  devise  for  the  exposure  of  falsehood  and  the  ascertain- 
ment of  truth.  Unless  the  law  is  much  less  "than  the 
perfection  of  human  wisdom,"  this  result  can  rarely  be 
inconsistent  with  truth.  In  the  common  as  in  the  civil 
law,  "the  authority  of  res  judicata  induces  a  presumption 
that  everything  contained  in  the  judgment  is  true,  and 
this  presumption,  being  juris  et  de  jure,  excludes  every 
proof  to  the  contrary."  ^  The  term  "  estoppel,"  as  applied 
to  judgments,  should  therefore  be  defined  as  that -which 
prohibits  a  party  from  disputing  the  truth. 

§  247.  Not  Odious.  —  The  word  "estoppel,"  as  asso- 
ciated with  judgments,  has  ceased  to  be  odious.  It  is 
more  than  freed  from  opprobrious  appellations;  the  vo- 
cabulary of  the  judges  has  been  wellnigh  exhausted  to 
supply  it  with  honorable  and  endearing  titles.  This  will 
be  made  evident  by  quotations  from  a  few  American  and 
a  few  English  cases:  "The  doctrine  of  estoppel  by  a 
former  judgment  between  the  same  parties  is  one  of  the 
most  beneficial  principles  of  our  jurisprudence,  and  has 
been  less  affected  by  legislation  than  almost  any  other."  ^ 
"The  maxim  that  there  must  be  an  end  to  litigation 
was  dictated  by  wisdom  and  is  sanctified  by  age."^  That 
an  estoppel  is  odious  is  not  to  be  applied  to  former  adju- 
dications. The  prevention  of  relitigation,  after  years 
have  elapsed,  does   not    necessarily  shut  out  the  truth. 

'  1  Pothier  on  Obligations,  pt.  4,  c.  *  Carothers,  J.,  in  V^^arwick  v.  Un- 

3,  sec.  3,  art.  3.  derwood,  3  Head,  238;   75  Am.  Dec. 

2  Miller,  J,,  in  Aurora  City  v.  West,  767. 
7  Wall.  82. 


437  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  247 

The  doctrine  of  estoppels  in  judgments,  instead  of  being 
odious,  is  one  of  the  most  conservative  and  salutary  doc- 
trines of  the  law/  "It  has  been  affirmed  that  there  is  no 
such  thing  as  an  equitable  estoj^pel.  But  the  doctrine  of 
election,  which  prevents  a  party  from  claiming  in  repug- 
nant rights,  and  which  has  been  advantageously  intro- 
duced into  courts  of  equity,  is  manifestly  an  extension  of 
this  principle.  In  courts  of  law  they  are  for  the  most 
part  reconcilable  to  the  purest  morality;  and  when  they 
produce  neither  hardship  nor  injustice,  they  merit  in- 
dulgence, if  not  favor.  The  conclusiveness  of  judgments, 
which  conduces  so  essentially  to  peace  and  repose,  has 
no  other  foundation."^  "The  very  object  of  instituting 
courts  of  justice  is,  that  litigation  should  be  decided,  and 
decided  finally.  That  has  been  felt  by  all  jurists.  It  is 
long  since  a  reason  has  been  assigned  why  judgments 
should  be  considered  final,  and  should  not  be  ripped  up 
again,  —  Ne  lites  sent  immortales,  dum  litanies  sunt  mortales. 
Human  life  is  not  long  enough  to  allow  of  matters  once 
disposed  of  being  brought  under  discussion  again;  and 
for  this  reason  it  has  always  been  considered  a  funda- 
mental rule  that  when  a  matter  has  once  become  res 
judicata,  there  shall  be  an  end  to  the  question."^  The 
doctrine  of  estoppel  is  not  strictly  applicable  to  a  judg- 
ment. A  judgment  is  not  the  act  of  a  party;  an  estoppel 
is.  A  judgment  is  a  bar,  not  because  a  party  has  done 
some  act  which  precludes  him  from  asserting  a  right  or 
title;  it  is  properly  a  bar  on  principles  of  public  policy, 
because  the  peace  and  order  of  society,  the  structure  of 
our  judicial  system,  and  the  principles  of  our  government 
require  that  a  matter  once  litigated  should  not  again  be 
drawn  in  question  between  the  same  parties  or  their 
privies,*     A  party  whose  interests  are  placed  in  jeopardy 

'Gray   v.   Pingry,  17    Vt.   419;   44  ^  Willes,  J.,  in  Great  Northern  R.  R. 

Am.  Dec.  345.  Co.  v.  Mossop,  17  Com.  B.  140. 

2  Gibson,  J.,  in    Martin  v.  Ives,   17  *  Huston,  J.,  in  Kilheffur  v.  Kerr,  17 

Serg.  &  R.  364-3G6.     See  also  Nelson,  Serg.    &   R.  31-0;    17    Am.  Dec.    658; 

J.,  in  Van  Rensselaer  v.  Kearney,  11  Kennedy,    J.,    in    Maish    r.    Pier,    4 

How,  326.  Rawle,  273;  26  Am.  Dec.  131. 


§  248  THE    JUDGMENT   AS    AN    ESTOPPEL.  438 

by  a  trial  has  a  right  to  judicial  immunity  from  the  con- 
sequences  of  further  trials  involving  the  same  issues.  If 
a  claim  is  in  issue,  and  is  not  withdrawn  at  the  trial,  it 
should  be  disposed  of  by  the  judgment;  and  if  the  court, 
under  such  circumstances,  reserves  such  claim  by  reciting 
in  the  judgment  that  "no  judgment  is  hereby  rendered 
touching  the  same,"  this  action,  it  is  said,  will  be  reversed 
on  appeal  by  making  the  judgment  a  final  bar  to  the 
further  prosecution  of  the  claim.* 

§248.  Decrees  —  Estoppels  in  Equity.  —  A  final  de- 
cree in  chancery  is  as  conclusive  as  a  judgment  at  law.^ 
Such  decrees  are  available  as  estoppels,  whether  the  sec- 
ond action  involving  the  same  question  be  at  law  or  in 
equity.^  Hence  a  decree  dismissing  a  bill  for  foreclosure 
on  the  ground  that  the  mortgage  was  void  is  a  complete 
defense  to  an  action  of  ejectment  subsequently  brought 
by  the  mortgagor.  "A  verdict  and  judgment  of  a  court 
of  record  or  a  decree  in  chancery  puts  an  end  to  all  points 
thus  decided  between  the  parties  to  the  suit.  In  this 
there  is,  and  ought  to  be,  no  difference  between  a  verdict 
and  judgment  in  a  court  of  law  and  a  decree  in  a  court 
of  equity.  They  both  stand  on  the  same  footing,  and 
may  be  offered  in  evidence  under  the  same  limitations; 
and  it  would  be  difficult  to  assign  a  reason  why  it  should 
be  otherwise."*  A  judgment  at  law  is  conclusive  on  the 
same  question  in  equity.*    "Nor  is  there  anything  anoma- 

'  Schmidt  v.  Zahensdorf,  30  Iowa,  Ga.  650;  Williams  v.  Row,  62  Pa.  St. 

498.  118;  Westcott  v.  Adams,  68  Pa.  St.  34; 

2  Sibbald's  Case,  12  Pet.  492;  Evans  Powers  v.  Chelsea  S.  B.,  129  Mass.  44; 

V.  Tatem,  9  Serg.    &  R.   261;  11  Am.  Thompson    v.    Lester,    75   Tex.    521; 

Dec.  717;  Kelsey  v.  Murphy,  26  Pa.  Shenandoah  V.  R.  R.   v.  Griffith,  76 

St.    78;  White   v.    Bank   of   U.  S.,   6  Va,    913;    Stevens    v.    Du    Berry,    1 

Ohio,  529;   Bank  of   U.   S.    v.   Bever-  Mackey,  294. 

ley,   1  How.   148;  Low  v.   Mussey,  41         *  Smith  v.  Kernochen,  7  How.  198; 

Vt.  393;  Maguire  v.  Tyler,  40  Mo.  406;  Hopkms  v.  Lee,  6  Wheat.  109;  Marsh 

McDonald  v.  Mol)ile  L.  I.  Co.,  65  Ala.  v.  Burroughs,  19  Am.    Law  Rep.  718; 

358;  Denver  v.  Lobenstein,  3  Col.  316.  Wilson  v.  Boughton,  50  Mo.  17;  The 

s  Stark  V.  Woodward,  1  Nott  &  McC.  Pha?be  Stuart,  L.  C.  Adm.  Rep.  63. 
328;  Hook  v.  Hood,   2   How.   (Miss.)         *  Pearce  r.  Gray,  2  Younge  &  C.  Ch. 

867;  Moody  v.  Harper,  38  Miss.  599;  322;  Hendrickson  v.  Noreross,  19  N.  J. 

Western  M.  &  M.  Co.  v.  V.  C.  0.  Co.,  Eq.  417;  Spellman  v.  Bowen,  8  GUI  & 

10  W.  Va,  250;  Baldwin  v.  McRea,  38  J.   50;  29  Am.    Dec.    524;  Pollock  ». 


439  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  249 

Ions  or  unusual  in  setting  up  a  former  adjudication  as  an 
estoppel  to  an  action  for  equitable  relief.  There  is  noth- 
ing unjust  or  inequitable  in  insisting  upon  an  estoppel 
by  a  judgment  upon  the  same  point;  on  the  contrary,  the 
rule  is  a  beneficial  one,  and  it  is  a  matter  in  which  the 
public  is  said  to  have  an  interest  as  well  as  the  parties, 
that  there  should  be  an  end  to  litigation."  ^  It  will  be 
seen  from  the  authorities  just  cited  and  quoted  that  the 
law  of  estoppel  arising  from  a  former  adjudication  is 
equally  applicable,  whether  the  second  action  or  proceed- 
ing or  the  former  litigation  be  of  a  legal  or  of  an  equita- 
ble nature.  And  this  adoption  of  the  law  of  estoppel  as 
a  part  of  the  principles  of  equity  jurisprudence  shows 
that  it  is  by  common  consent  deemed  consistent  with 
and  necessary  to  a  disposition  of  the  rights  of  the  parties, 
according  to  equity  and  good  conscience.  The  fact  that 
a  party  was,  in  a  suit  in  equity,  not  permitted  to  be  a 
witness  on  his  own  behalf  will  not  prevent  the  decree 
entered  therein  from  being  conclusive  against  him  in  a 
subsequent  action  at  law,  though  in  such  action  he  is 
competent  to  appear  as  a  witness  for  himself.^ 

§  249.  Extent  of  the  Estoppel.  —  There  is  no  doubt  that 
a  judgment  or  decree  necessarily  affirming  the  existence 
of  any  fact  is  conclusive  upon  the  parties  or  their  privies, 
whenever  the  existence  of  that  fact  is  again  in  issue  be- 
tween them,^  not  only  when  the  subject-matter  is  the  same, 

Gilbert,  16  Ga.  398;  60  Am.  Dec.  732;  Duncan,    20   Ark.    85;   Hibshman    v. 

Bonney   v.    Bowman,    63    Miss.     IGG;  Dulleban,  4  Watts,  183;  Gist  v.  Davis, 

Cowan  V.  Wheeler,  25  Me.  267;  43  Am.  2  Hill  Ch.  335;  29  Am.  Dec.  80:  Lare  v. 

Dec.  283;  McCampbell  v.  McCampbell,  Truman,    10   Ohio   St.    45;    Wales   v. 

5  Litt.   92;  15  Am.   Dec.   48;  Lane  v.  Lyon,  2  Mich.  276;  Mayor  v.  Lord,  9 

Lane,  80  Me.  270;  Tilson  v.  Davis,  32  Wall.  409;  Sabin  v.  Sherman,  28  Kan. 

Gratt.  92.  289;  Heroman  v.  Louisiana  D.  &  D.  I., 

1  San  Francisco  v.  S.  V.  W.  W.,  39  34  La.  Ann.  805;  IJutlson  v.  Superior 

Cal.  473.  Judge,    42    Mich.     239;    Williams    v. 

^Putnam  v.    Clark,   34   N.    J.   Eq.  Bachelor,   90  N.    C.    364;   Spriiii,'3   v. 

532.  Schenck,     106   N.     C.     153;     Kellogg 

^Duchessof  Kingston's  Case, II  State  v.  Maddocks,   1  Wash.  407;  Bleckeley 

Trials,  261;  Gahanv.  Maingay,  1  Irish  v.    Branyan,    28   S.   C.    445;  Smith    v. 

Term  P^ep.  54;  Croudson  v.  Leonard,  Sims,  77  Mo.  2()9;  Lieb  v.  Lichteiistein, 

4Cranch,  436;  Outram  v.  Morewood,  121  Ind.  4S3;  Morse  v.  Ebus,  131  Miiss. 

3   East,   345;  Gardner   v.   Biickl)ee,   3  151;  Parnell   v.    Halm,   61     Cal.    131; 

Cow.    120;  15  Am.  Dec.  256;  Peay  v.  AUis  v.  Davidson,  23  Miun.  442. 


§  249  THE    JUDGMENT    AS    AN    ESTOPPEL.  440 

but  when  the  point  comes  incidentally  in  question  in  rela- 
tion to  a  different  matter/  in  the  same  or  any  other  court, 
except  on  appeal,  writ  of  error,  or  other  proceeding  pro- 
vided for  its  revision.^ 

The  judgments  of  appellate  courts  are  as  conclusive  as 
those  of  any  other  court.  They  not  only  establish  facts, 
but  also  settle  the  law,  so  that  the  law  as  decided  upon 
any  appeal  must  be  applied  in  all  the  subsequent  stages 
of  the  cause.^  Nor  can  the  effect  of  a  judgment  as  res  ju- 
dicata be  avoided  by  showing  that  though  an  appeal  was 
attempted  to  be  taken  the  judgment  was  affirmed  without 
considering  the  cause  on  its  merits,  because  of  the  absence 
of  a  sufficient  assignment  of  errors,  or  of  some  other  de- 
fect in  the  appellate  proceedings.'* 

"  It  is  a  universal  principle  that  where  power  or  juris- 
diction is  delegated  to  any  public  officer  or  tribunal  over 
a  subject-matter,  and  its  exercise  is  confided  to  his  or  their 
discretion,  the  acts  so  done  are  binding  and  valid  as  to 
the  subject-matter;  and  individual  rights  will  not  be  dis- 
turbed collaterally  for  anything  done  in  the  exercise  of 
that  discretion  within  the  authority  and  power  conferred. 
The  only  questions  which  can  arise  between  an  individual 
claiming  a  right  under  acts  done,  and  the  public  or  any 
person  denying  its  validity,  are,  power  in  the  officer  and 
fraud  in  the  party.  All  other  questions  are  settled  by 
the  decision  made  or  act  done  by  the  tribunal  or  officer, 
whether  executive,  legislative,  judicial,  or  special,  unless 
an  appeal  is  taken." ^  After  judgment  on  the  merits,  the 
parties  "  cannot  canvass  the  same  question  again  in  an- 
other action,  although,  perhaps,  some  objection  or  argu- 
ment might  have  been  urged  upon  the  first  trial  which 
would  have  led  to  a  different  judgment."^ 

*  Gray  v.  Dougherty,  25  Cal.  272;  Lucas  v.  San  Francisco,  28  Cal.  591; 

Caperton  v.  Schmidt,  26  Cal.  493;  85  Sturgis  v.  Rogers,  26  Ind.  1. 
Am.  Dec.   187;  Garwood  v.  Garwood,         *  Miller  v.  Bernicker,  46  Mo.  194. 
29  Cal.  521.  *  United  States  v.  Arredondo,  6  Pet. 

2  Demeritt  v.  Lyford,  7  Fost.  729;  Waugh  v.  Chauncey,  1.3  Cal.  12, 
541.  "^  Greathead  v.  Bromley,  7  Term  Hep. 

3  Chouteau   v.   Gibson,    76    Mo.   38;  456, 


441  THE    JUDGMENT   AS   AN    ESTOPPEL.  §  249 

"An  adjudication  is  final  and  concluaive  not  only  as 
to  the  matter  actually  determined,  but  as  to  every  other 
matter  which  the  parties  might  have  litigated  and  have 
had  decided  as  incident  to  or  essentially  connected  with 
the  subject-matter  of  the  litigation,  and  every  matter 
coming  within  the  legitimate  purview  of  the  original  ac- 
tion, both  in  respect  to  matters  of  claim  and  of  defense."' 
The  general  expression,  often  found  in  the  reports,  that  a 
judgment  is  conclusive  of  every  matter  which  the  parties 
might  have  litigated  in  the  action  is  misleading.  What 
is  really  meant  by  this  expression  is,  that  a  judgment  is 
conclusive  upon  the  issues  tendered  by  the  plaintiff's 
complaint.  It  may  be  that  the  plaintiff  might  have  united 
other  causes  of  action  with  that  set  out  in  his  complaint, 
or  that  the  defendant  might  have  interposed  counter- 
claims, cross-bills,  and  equitable  defenses,  or  either  of  the 
parties  may  have  acquired  new  rights  pending  the  litiga- 
tion, which  might,  by  permission  of  the  court,  have  been 
pleaded  by  supplemental  complaint  or  answer,  and  there- 
fore might  have  been  litigated  in  the  action.  But  as 
long  as  these  several  matters  are  not  tendered  as  issues 
in  the  action,  they  are  not  affected  by  it.  Whatever  mate- 
rial allegations  the  plaintiff  makes  in  his  pleadings  he 
must  maintain,  if  they  are  controverted,  and  failing  to  do 
so,  a  judgment  against  him  is  conclusive  of  their  falsity. 
The  defendant,  on  his  part,  must  controvert  all  these  alle- 
gations which  he  wishes  to  gainsay,  and  failing  to  do  so, 
their  truth  is  incontestably  established  as  against  him. 

*  Harris  v.  Harris,  36  Barb.  88;  Cle-  might  have  been  pleaded  is  a  waiver  of 

mens  v.  Clemens,  37  N.  Y.  59;  Burford  them  forever:  Dewey  w.  Peck,  .33  Iowa, 

V.    Kersey,    48    Miss.    643;    Bates    v.  242;  Lawrence   S.  B.    v.   Stevens,    4G 

Spooner,  45  Ind.  489;  Estill  v.  Taul,  2  Iowa,  429;  Murrell  v.  Smith,  51  Ala. 

Yerg.  466;  24  Am.  Dec.  498;  Petersine  301 ;  Kelly  v.  Donlin,  70  111.  378;  (Jaines 

V.  Thomas,  28  Ohio  St.  596;  Tuska  v.  v.  Kennedy,  53  Miss.  103;  Covington 

O'Brien,    68   N.   Y.   446;    Cromwell  v.  &  C.  B.  Co.  v.  Sargent,  27  Ohio  St.  233. 

County  of  Sac,  94   U.    S.    351;   Case  But  to  come  witliin  this  rule,  the  inat- 

V.  Beauregard,  101  U.  S.  688;  Thomp-  ter  claimed  to  be  barred  must  he  such 

son    V.  Myrick,    24    Minn.  4;  Jacob-  that  the  party  was  bound  to  present 

son  V.  Miller,  41   Mich.  90;   Roby  v.  it:  Malloney  r.  Horan,  49  N.  Y.   115; 

Rainsberger,  27  Ohio  St.  674;  Knight  10  Am.  liep.  335;  Barwoll  v.  Kuight, 

V.  Atkinsbon,  2  Teun.  Ch.  384.     Failure  51  Barb.  267. 
to   plead    matters  of    defease   which 


§  249  THE    JUDGMENT    AS    AN    ESTOPPEL.  442 

He  cannot  by  failing  to  deny  any  of  them,  or  if  he  denies 
them,  by  failing  to  offer  evidence  to  controvert  that  offered 
by  plaintiff  in  support  of  any  of  them,  successfully  claim 
that  it  has  not  been  litigated  and  determined  against  him. 
In  other  words,  neither  party  can  decline  to  meet  an  issue 
tendered  by  the  other,  and  then  maintain  that  it  has  not 
become  res  judicata.  The  plaintiff  must  support  all  the 
issues  necessary  to  maintain  his  cause  of  action.  The 
defendant  must  bring  forward  all  the  defenses  which  he 
has  to  the  cause  of  action  asserted  in  the  plaintiff's  plead- 
ings '  at  the  time  they  were  filed.  In  this  sense  is  it  true 
that  a  judgment  is  conclusive  of  every  matter  which 
might  have  been  litigated  and  decided  in  the  action.  But 
the  plaintiff  is  under  no  obligation  to  tender  issues  not 
necessary  to  support  his  cause  of  action,  nor  is  the  defend- 
ant required  to  meet  issues  not  tendered  by  plaintiff;  and 
if,  after  the  defendant  has  fully  met  all  the  issues  tendered 
by  plaintiff,  there  is  any  matter  not  admissible  in  evidence 
under  the  pleadings,  it  is  generally  not  concluded  by  the 
judgment,  though  the  parties  might  by  different  pleadings 
have  made  it  an  issue  in  the  action  and  had  it  determined. 
Thus  in  an  action  to  recover  real  estate,  the  defendant 
cannot  put  in  evidence  a  title  acquired  pendente  lite,  unless 
he  has  pleaded  it  by  a  supplemental  answer;^  and  there- 
fore where  he  has  not  so  pleaded  it,  he  is  not  concluded 
from  asserting  it  in  a  subsequent  action.^     In  one  case  it 

i  Glenn  w.  Savage,  14  Or.  567;  Nich-  110;  State  v.  Brown,  64  Md.  199- 
ols  V.  Dibrell,  61  Tex.  539;  Caston  v.  Faust  v.  Faust,  31  S.  C.  576;  Sloan  v. 
Perry,  1  Bail.  533;  21  Am.  Dec.  482;  Price,  84  Ga.  171;  20  Am.  St.  Rep.  354; 
Neil  V.  Tolman,  12  Or.  289;  Mally  v.  Stickney  v.  Goudy,  132  III.  213;  Berry 
Mallv,  52  Iowa,  654;  Ludeling  v.  v.  Whiddin,  62  N.  H.  473;  Warren  v. 
Chaffe,  40  La.  Ann.  645;  Gage  v.  Cook,  116  III.  199;  Sauls  i;.  Freeman, 
Downey,  79  Cal.  140;  Woodhouse  v.  24  Fla.  209;  12  Am.  St.  Rep.  190;  Ben- 
Duncan,  106  N.  Y.  527;  Biererw.  Fritz,  nitt  v.  Wilmington  S.  M.  Co.,  119  111. 
37  Kan.  27;  Lee  v.  Kingsbury,  13  Tex.  9;  Elwood  v.  Beymer,  100  Ind.  504; 
68;  62  Am.  Dec.  546;  Ellis  v.  Clarke,  Jarboe  v.  Severin,  112  Ind.  572;  Kurtz 
19  Ark.  420;  70  Am.  Dec.  603;  Wilson  v.  Carr,  105  Ind.  574. 
V.  Stripe,  4  G.  Greene,  551;  61  Am.  '•' Bagley  v.  Ward,  37  Cal.  121;  99 
Dec.  138;  Kenyon  v.  Wilson,  78  Iowa,  Am.  Dec.  256;  Valentine  v.  Mahoney, 
408;  Embury  v.  Conner,  3  N.  Y.  511;  37  Cal.  396;  Thompson  v.  McKay,  41 
53  Am.   Dec.  527;  Denver  C.  I.  &  W.  Cal.  221. 

Co.  V.  Middaugh,  12  Col.  434;  13  Am.         ^  People's   Sav.   B.   v.  Hodgdon,  64 

St.    Rep.    234:    Sayre   v.   Harpold,  33  Cal.  95. 
W.  Va.  553;  Howe  v,  Lewis,  121  Ind. 


443  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  249 

was  decided  that  the  fact  that  a  question  could  have  been 
determined  in  a  former  controversy  was  sufficient  to 
make  it  res  judicata  as  to  the  property  there  involved,  but 
did  not  settle  it  as  to  other  property,  unless  it  was  actually 
litigated/ 

"Where  the  matter  adjudicated  is  by  a  court  of  pecu- 
liar and  exclusive  jurisdiction,  and  the  same  matter 
comes  incidentally  in  question  before  another  court,  the 
sentence  in  the  former  is  conclusive  upon  the  latter,  as 
to  the  matter  directly  decided,  not  only  between  the  same 
parties,  but  against  strangers,  unless  it  can  be  impeached 
on  the  ground  of  fraud  or  collusion."^  The  discovery  of 
new  evidence,  not  in  the  power  of  the  party  at  the  former 
trial,  forms  no  exception  to  the  rule  in  relation  to  estop- 
pels, whether  the  second  action  is  at  law  or  in  equity.^  If 
a  judgment  of  reversal  provides  that  it  is  not  to  prejudice 
any  future  claim  which  the  appellee  may  make  on  further 
proof,  this  judgment  is  nevertheless  conclusive  in  a  sec- 
ond action,  unless  the  proof  is  different  from  that  in  the 
first  action.*  To  render  a  matter  res  judicata,  it  is  not 
essential  that  it  should  have  been  distinctly  and  specifi- 
cally put  in  issue  by  the  pleadings.  It  is  sufficient  that 
it  be  shown  to  have  been  tried  and  settled  in  the  former 
suit.^  AVhen  a  matter  is  once  adjudicated,  it  is  conclu- 
sively determined  as  between  the  same  parties  and  their 
privies;  and  this  determination  is  binding  as  an  estoppel, 
in  all  other  actions,  whether  commenced  before  or  after 
the  action  in  which  the  adjudication  was  made.^  The 
effect  of  a  judgment  as  res  judicata  is  not  limited  nor  en- 
larged by  the  reasons  given  by  the  court  for  its  rendition,^ 

1  Sloan    V.    Price,    84   Ga.    171;    20  v.  Keyea,  9  Gray,  221;  Memphis  &  C. 

Am.  St.  Rep.  354.  R.  R.  Co.  v.  Grayson,  88  Ala.  572;  16 

■■*  Lessee  of  Rhoades  v.  Selin,  4  Wash.  Am.  St.  Rep.  69;  Schuler  v.  Israel,  120 

C.  C.  716.  U.  S.  506;  Casebeer  v.  Mowry,  55  Pa. 

3  Kilheffer  v.  Kerr,   17  Serg.   &  R.  St.    419;   93  Am.    Dec.  766.     Contra, 

319;  17  Am.  Dec.  658.  State  v.  Spikes,  33  Ark.  801. 

*  Inuis  V.  Roane,  4  Call,  379.  '  Davis  v.  Millaudin,  17  La.  Ann.  15; 
^  Bigelow  V.  Winsor,  1  Gray,  299.  87  Am.  Dec.  517;  Garvin  v.  Garvin,  27 

*  Poorman  v.  Mitchell,  48  Mo.  45;  S.  C.  472;  Girardiu  v.  Dean,  49  Tex. 
Allis  V.  Davidson,  23  Minn.  442;  Fin-     243. 

ley  V.  Hanhest,  30  Pa.  St.  PJO;  Marble 


§  249  THE    JUDGMENT   AS    AN    ESTOPPEL.  444 

nor  by  the  failure  of  the  court  to  give  its  reasons  in  writ- 
ing on  every  jDoint  when  required  to  do  so  by  the  consti- 
tution of  the  state. ^     Neither  can  the  force  of  a  judgment 
as  res  judicata  be  destroyed  or  impaired  by  showing  that 
it  was  clearly  erroneous,  and  ought  not  to  have  been  ren- 
dered, whether  such  error  resulted  from  the  court  drawing 
an   erroneous   conclusion    from   conceded  or  established 
facts,^  or  making  a  ruling  during  the  progress  of  the  trial 
whereby  evidence  was  erroneously  admitted  or  excluded, 
or  the  law  misstated  to  the  jury,  or  one  of  the  parties  was 
otherwise  deprived  of  the  benefit  of  his  cause  of  action  or 
defense,  or  of  some  part  thereof.^     Nor  is  the  effect  of  a 
judgment  as  res  judicata  lessened  when  the  fact  that  it  is 
erroneous  is  established  by  the  decision  of  the  highest 
appellate  tribunal  in  the  state,  rendered  in  another  action.* 
The  law  of  the  case  seems  not  only  to  govern  the  action 
in  its  subsequent  stages,  but  to  control  other  actions  be- 
tween the  same  parties  relating  to  the  same  subject-matter 
or  transaction.    Thus  where  several  installments  of  money 
were  due  on  a  contract,  and  the  court  decided  that  it  was 
such  a  contract  that  an  action  could  be  sustained  for  one 
installment  without  impairing  the  right  to  subsequently 
sue  for  another  installment  due  when  the  first  action  was 
brought,  it  was  held  that  the  parties  were  estopped  in  a 
third   action  from   contending  that  the  decision  in  the 
j:)rior  action  was  erroneous,  and  that  a  judgment  for  any 
one  installment  merged  others  due  when  the  action  was 
brought.^     So  where  the  character  and  effect  of  a  writing 
is  settled  by  the  judgment  of  a  court  of  competent  juris- 
diction, it  cannot  be  shown  in  another  action  between  the 

1  Heury  v.  Davis,  13  W.  Va.  230.  v.  Hill,  132  U.  S.  107;  State  v.  Bowen, 

2  Case  V.  Beauregard,  101  U.  S.  688;     45  Minn.  145. 

State     V.    Rarnsl)urg,     43    Md.     325;  ^  Winslow  v.  Stokes,  3  Jones,  285; 

Pvountree    v.    Walker,    46    Tex.    300;  67  Am.  Dec.  242;  Sayre  v.  Harpold,  33 

Linehan   v.    Hathaway,    54  Cal.    251;  W.  Va.  553. 

Crenshaw  v.  Julian,  26  S.  C.  283;   4  *  Stevenson  v.  Edwards,  98  Mo.  622; 

Am.  St.  Rep.   719;  Darke  v.  Ireland,  Frost  v.  Frost,  21  S.  C.  501. 

4  Utah,  192;  Leavenworth  v.  Chicago  ^  Lorillard  v.  Clyde,   122  N.  Y.  41; 

etc.  R.  R.  Co.,  134  U.  S.  688;  Howison  19  Am.   St.  Rep.  470;  and  case  with 

V.  Weeden,  77  Va.  704;  Peck  v.  Cul-  same  title  in  102  N.  Y.  69. 

berson,  104  N.  C.  425;  Scotland  County 


445  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  24^ 

same  parties  that  it  ought  to  be  given  a  different  effect,' 
and  a  judgment  in  favor  of  defendants  in  a  suit  against 
county  commissioners  to  enjoin  an  assessment  for  road 
improvements,  on  the  ground  of  their  want  of  jurisdiction 
to  make  it,  is  a  bar  to  a  subsequent  suit  claiming  their 
want  of  jurisdiction,  upon  a  ground  not  before  urged.* 

In  proceedings  in  the  court  of  claims  the  law  of  res 
judicata  applies  against  the  government  as  if  it  were  an 
ordinary  suitor.^  The  fact  that  the  amount  in  controversy 
is  so  small  that  the  defeated  party  has  no  right  of  appeal 
does  not  make  the  judgment  any  the  less  conclusive  when 
the  same  question  arises  in  a  subsequent  litigation,  though 
the  amount  there  involved  is  suflficiently  large  to  support 
an  appeal.''  If  a  decree  or  order  is  entered  authorizing 
the  sale  of  land  or  other  property,  it  is  conclusive  of  all 
matters  which  might  have  been  urged  against  granting 
it,  and  the  court  will  not  consider  any  of  such  matters  as 
grounds  for  denying  the  confirmation  of  a  sale  made  pur- 
suant to  such  order  or  decree;^  and  the  order  of  confirma- 
tion, unless  vacated  by  the  court  which  entered  it,  is 
conclusive  upon  all  facts  necessary  to  support  the  sale,  if 
the  court  had  jurisdiction  of  the  cause  and  of  the  parties, 
and  authority  to  order  the  sale.®  A  judgment  refusing  a 
writ  of  mandate  or  other  prerogative  writ  is  effective  as  a 
bar  to  any  further  litigation  based  upon  the  same  right  of 
recovery.^  On  the  other  hand,  on  an  application  for  a 
writ  of  mandate  to  compel  the  levy  of  a  tax  to  pay  a  judg- 
ment, it  has  been  held  that,  if  it  appears  that  the  judg- 
ment was  recovered  upon  certain  bonds  or  coupons  which 

1  Thorn  v.  Newsom,  64  Tex.  161;  53         «  Freeman  on  Executions,  soc.  304  1; 
Am.  Rep.  747.  Barling     v.     Melhoru,     75     Va.     631); 

2  Martin  w.  Roney,  41   Ohio  St.  141.      Langyher   v.    Patter.wn,  77    Va.   470; 
5  Fendall  v.  United  States,  14  Ct.  of     Brown  v.  Gilinore,  8  Md.  332;  Nelij^h 

CI    247  "■  Keene,  16  Noh.  407;  Wyant  v.  Tut- 

'  Griffin  v.  Long  Island  R.  R.  Co.,  hill,  17  Neb.  495;  McGavoek  v.  Bell,  3 

102  N.  Y.  449.  ("old.  512;  Dresbach  v.  Stein,  41  Ohio 

^Hale  v.  Manchester  etc.  R.  R.  Co.,  St.  70;  Sewell  v.  Watson,  21  La.  Ann. 

61  N.  H.  641;  Freeman  on  Executions,  589;  State  N.  B.  v.  Neel,  53  Ark.  110; 

sec.  304  f;  Koeliler  r.  Ball,  2  Kan.  l.')4;  22  Am.  St.  Rep.  185. 

S3  Am.  Dec.   451;  Musgrove  v.  Lusk,  "Louis   v.    Brown,    109    U.   S.    162; 

2  Tenu.  Ch.  579;  Norris  v.  Callahan,  Santa  Cruz  Gap  Turnpike  etc.   Co.  v. 

19  W.  Va.  159.  Sauta  Cruz  Co.  Supervisors,  62  Cal.  40. 


§  250  THE    JUDGMENT   AS    AN    ESTOPPEL.  446 

were  void  for  want  of  authority  to  issue  them,  the  writ 
will  be  denied  on  account  of  their  invalidity,  not- 
withstandiug  the  judgment  recovered  upon  them.'  Pre- 
cisely what  conditions  are  indispensable  to  a  judgment  in 
one  action,  in  order  that  it  may  be  received  as  conclusive 
in  another,  has  never  been  specified  in  any  very  distinct 
or  satisfactory  manner.  We  shall,  however,  proceed  to 
show  those  requisites  which  have  been  enumerated  by 
various  judges. 

Part  II.  —  REQUISITES  TO  JUDGMENT  ESTOPPELS. 

§  250.  Judgment  must  be  Free  from  Collusion.  —  Ac- 
cording to  the  statement  made  by  Wedderburn  in  his 
argument  in  the  celebrated  case  against  the  Duchess  of 
Kingston,  and  adopted  by  Lord  Brougham  in  a  subse- 
quent case,'^  to  receive  credit  as  an  estoppel,  a  judgment 
or  decree  must  be  "  a  judicial  determination  of  a  cause 
agitated  between  real  parties,  upon  which  a  real  interest 
has  been  settled.  In  order  to  make  a  sentence,  there 
must  be  a  real  interest,  a  real  prosecution,  a  real  defense, 
and  a  real  decision.  Of  all  these  requisites,  not  one  takes 
place  in  a  fraudulent  or  collusive  suit.  There  is  no  judge, 
but  a  person  invested  with  the  insignia  of  a  judicial  office 
is  misemployed  in  listening  to  a  fictitious  cause  proposed 
to  him.  There  is  no  party  litigating;  there  is  no  party 
defendant,  no  real  interest  brought  in  question."^  It  is 
also  said  that  the  principle  of  res  judicata  cannot  be  in- 
voked to  sustain  fraud.  Therefore,  in  an  action  against 
several  judgment  defendants  upon  a  judgment,  one  of 
them  may  show  that  it  was  obtained  by  a  conspiracy 
between  the  plaintiff  and  one  of  the  defendants.^  One 
cannot,  by  procuring  proceedings  to  be  commenced  against 
himself  and  controlling  both  the  prosecution  and  defense, 
procure  a  judgment  "which  will   bar  another  action  in 

'  Brownsville  v.  League,  129  U.  S.  '  Duchess  Kingston's  Case,  11  State 

493.  Trials;   Batts  i). '  Winstead,   77  N.   0. 

2  Earl  of  Bandon  v.  Becber,  3  Clark  238, 

&  F.  479.  *  Spencer  v.  Vigneaux,  20  Cal.  442. 


447  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  251 

favor  of  a  party  whose  name  has  been  used,  but  who  in 
fact  had  no  knowledge  or  control  of  the  prosecution  of  the 
action,"^ 

§251.  Judgment  must  be  Final.  —  No  question  be- 
comes res  adjudicata  until  it  is  settled  by  a  final  judgment.^ 
For  this  reason,  the  verdict  of  a  jury,  the  finding  of  a 
court,  or  the  report  of  a  referee  or  master  is  not  admis- 
sible as  evidence  to  create  an  estoppel,  before  it  has 
received  the  sanction  of  the  court,  by  passing  into  a 
judgment.'  But  where  no  power  exists  to  destroy  the 
effect  of  a  verdict,  it  is  conclusive  in  the  absence  of  any 
judgment.  Thus  where  a  justice  of  the  peace  was,  by  law, 
bound  to  enter  a  judgment  according  to  the  findings  of 
the  jury,  and  had  no  authority  to  arrest  it  nor  to  award  a 
new  trial,  it  was  held  that  his  omission  to  comply  with 
the  law  did  not  prevent  the  verdict  from  barring  a  new 
suit.  "The  entry  of  judgment  was  a  thing  of  course,  and 
in  justice  and  sound  policy  the  verdict  ought  to  be  equally 
conclusive  against  any  further  litigation  between  the  same 
parties,  on  the  same  matter,  as  if  the  formal  entry  of  judg- 
ment had  been  made."  *  So  in  Vermont  if  a  judgment 
is  regularly  rendered,  and  the  cause  continued  for  the 
assessment  of  damages,  the  validity  of  the  contract  on 
which  the  action  is  founded  is  regarded  as  established 
beyond  further  controversy.^  The  same  reasons  which 
require  that  a  verdict  should  not,  by  itself,  be  regarded  as 
conclusive  are  equally  applicable  to  such  interlocutory 
judgments  or  decrees  as  may  at  any  time  be  modified 
or  vacated  by  the  court  which  rendered  them.®     The  rule 

'  Ice  V.  State,  123  Ind.  593.  Neb.    124;   93  Am.  Dec.    333;    Hum- 

'^  Collins  V.  Jennings,  42  Iowa,  447;  i^hreys  v.  Browne,  19  La.   Ann.   158; 

Webb  V.    Buckelew,    82  N.    Y.   555;  Schurmeier  v.  Johnson,  10  Minn.  319; 

State  V.  Jenkins,  70  Md.  472;  Banking  Gilbert  v.  Graham,  East.  T.   1873,  Iq 

Ass'n  V.  Adams,  3  Woods,  21.  New  Brunswick. 

»  Smith  V.    McCool,    16  Wall.  560;  ^  Felter  v.   Mulliner,  2  Johns.   181; 

Benson  v.    Post,    2    Dak.    220;    Hoi-  Estep  v.  Hutchmau,    14   Serg.   &   R. 

bert's   Estate,    57   Cal.    257;   Nash  v.  181. 

Hunt,  116  Mass.  237;  Pvidgely  v.  Spen-  ^  New  York  C.  B.  v.  Dorset  Marble 

ser,  2  Biun.  70;  Whitaker  v.  Bramson,  Co.,  58  Vt.  70. 

2  Paine,  209;  McReady  v.  Rogers,  1  ^  Baugh  v.  Baugh,  4  Bibb,  550. 


§  252  THE    JUDGMENT   AS    AN    ESTOPPEL.  448 

upon  this  subject,  and  the  grounds  upon  which  it  is  based, 
are  well  stated  by  Pothier.  He  says:  "  A  judgment,  to 
have  the  authority  or  even  the  name  of  res  judicata,  must 
be  a  definitive  judgment  of  condemnation  or  dismissal,  A 
provisional  condemnation,  then,  cannot  have  either  the 
name  or  the  authority  of  res  judicata,  for  although  it  gives 
the  party  obtaining  it  a  right  to  compel  the  opposite  party 
to  pay,  or  deliver  provisionally,  the  money  or  things  de- 
manded, it  does  not  put  an  end  to  the  cause,  or  form  a 
presumption  juris  de  jure,  that  what  is  ordered  to  be  paid 
or  delivered  is  due,  since  the  party  condemned  may  be 
admitted  in  the  principal  case  to  prove  that  what  he  was 
ordered  to  pay  was  not  due,  and  consequently  to  obtain  a 
reversion  of  the  judgment."* 

§  252.  Identities  Demanded.  —  "To  make  a  matter  res 
adjudicata,  there  must  be  a  concurrence, — 1.  Of  identity  of 
the  subject-matter;  2.  Of  the  cause  of  action;  3.  Of  per- 
son and  parties;  and  4.  In  the  quality  of  the  persons  for 
or  against  whom  the  claim  is  made."^  According  to 
another  case,  the  requisites  are:  1.  That  the  judgment 
proceed  from  a  court  having  jurisdiction;  2.  That  it  be 
between  the  same  parties;  and  3.  That  it  be  for  the  same 
purpose.^  In  Massachusetts,  to  ascertain  whether  a  judg- 
ment is  a  bar,  the  courts  will  inquire, — 

1.  Whether  the  subject-matter  m  controversy  has  been 
brought  in  question,  and  within  the  issue  in  the  former 
proceeding,  and  has  terminated  in  a  regular  judgment  on 
the  merits; 

2.  Whether  the  former  suit  was  between  the  same 
parties,  in  the  same  right  or  capacity,  or  their  jDrivies 
claiming  under  them; 

3.  Whether  the  former  judgment  was  before  a  court  of 
competent  jurisdiction.* 

1  Pothier  on  Obligations,  pt.  4,  c.  3,  Judicata;    Slocomb  r.  De   Lizardi,  21 

sec.  3,  art.  1.  La.  Ann.  355;  99  Am.  Dec.  740. 

'^  Benz  V.  Hines,  3  Kan.  397;  89  Am.  ^  Aspden  v.  Nixon,  4  How.  467,  497. 

Dec.  594;  State  v.  Jumel,  30  La.  Ann.  *  Biyelow  v.  Windsor,  ]   Gray,  299. 

801;    2   Bouvier'a   Law  Die,  tit.  Rea  See   also   McDonogh's   Succession,  24 


449  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  253 

That  a  judgment,  to  constitute  an  estoppel,  must  pro- 
ceed from  a  court  of  competent  jurisdiction  is  a  propo- 
sition which  requires  neither  arguments  nor  authorities 
to  prove  its  existence  or  to  illustrate  its  application.  The 
necessity  of  a  judgment  being  between  the  same  parties 
or  their  privies,  and  the  limitation  and  extensions  of  the 
rule  in  this  respect,  have  already  been  fully  considered 
in  the  chapter  on  parties.  But  the  cases  cited  seem  to 
demand  the  existence  of  the  following  identities  between 
two  suits,  to  constitute  the  first  decided  a  bar  to  the 
further  prosecution  of  the  second,  to  wit:  1,  Identity  of 
subject-matter;  2.  Identity  of  cause  of  action;  and  3.  Iden- 
tity of  purpose  or  object.  While  a  concurrence  of  these 
identities  usually  attends  when  one  case  is  determined  by 
the  decision  in  another,  yet  nothing  is  indispensable  to 
impart  a  conclusive  effect  to  a  former  judgment,  as  will 
be  manifest  by  reference  to  a  few  of  the  reported  cases, 
except  identity  of  issues  or  issues  involved.  If  any  ques- 
tion of  fact  has  been  necessarily  and  directly  drawn  in 
question  and  determined  by  a  final  judgment,  such  deter- 
mination of  it  is  generally  conclusive  in  a  subsequent 
action  between  the  same  parties  and  those  in  privity  with 
them,  whether  the  form  or  subject-matter  of  the  two  ac- 
tions be  the  same  or  different.  On  the  other  hand,  if  two 
actions  are  upon  different  causes,  a  judgment  in  one  can- 
not affect  the  other,  though  the.  subject-matter  of  each  is 
the  same.' 

§  253.  Identity  of  Subject-matter.  —  The  principle  is 
recognized  and  supported  in  most  of  the  American  cases, 
that  a  decision  upon  any  material  point  is  conclusive, 
though  the  subject-matter  of  the   two  suits  is  different  ^ 

La.  Ann.  33;   Miller  v.  McManis,  57  v.  Starr,  5  Conn.  550;  13  Am.  Dec.  94, 

111.  126;  Tucker  v.  Rohrback,  13  Mich,  and  note;  Doty  v.  Brown,  4  N.  Y.  71; 

75;    Green   v.  Iredale,   13   S.  C.  588;  53  Am.  Dec.  350;  Williams?;.  Fitzhugh, 

Carre  v.  New  Orleans,  41  La.  Ann.  91)6;  44  Barb.  321 ;  Walker  v.  Chase,  53  Me. 

Goodwin?;.  Snyder.  75  Wis.  450;  State  258;    Cromwell  v.   County   of  Sac,   94 

V.  Jumel,  30  La.  Ann.,  pt.  2,  p.  861;  U.  S.  351;  4  Cent.  L.  J.  416;  Rucker 

McCamant   v.    Roberts,   66    Tex.   260;  v.  Steelman,  97  Ind.  222;   Flanagan  v. 

Gilbreath  v.  Jones,  66  Ala.  129.  Thompson,  4  Hughes,  421;   Sketchley 

1  Linne  v.  Stout,  44  Minn.  110.  v.  fcsuiith,  78  Iowa,  542. 

»  Spencer?;.  Dearth,  43  Vt.  98;  Betts 
JODG.  L— 29 


§  253  THE    JUDGMENT    AS    AN    ESTOPPEL.  450 

N.  sued  R.,  a  servant  of  C,  for  property.  C.  defended  for 
his  servant,  claiming  title  under  a  chattel  mortgage  from 
H.;  N.  claimed  under  judgment  against  H.,and  sought  to 
impeach  the  mortgage,  on  the  ground  that  it  was  fraudu- 
lent as  to  creditors.  At  the  trial,  N.  failing  to  prove  his 
judgment,  the  decision  was  in  favor  of  R.  C.  afterward 
sued  N.  for  the  same  property,  and  contended  that  the 
judgment  in  favor  of  R.,  under  the  circumstances,  was 
conclusive  that  the  property  belonged  to  C.  N.,  to  avoid 
the  operation  of  the  estoppel,  contended,  —  1.  That  in  the 
former  suit  the  chattel  mortgage  matter  had  not  been 
determined;  2.  That  the  parties  were  different.  But  it 
was  held  that  the  issues  in  the  first  suit  were  such  that 
the  findings  of  either  in  favor  of  C.  constituted  an  es- 
toppel. One  issue  was  the  bona  fides  of  the  mortgage, 
the  other  was  the  title  of  N.  to  the  property  in  dispute, 
N.  having  failed  to  show  that  he  was  a  judgment  creditor, 
could  not,  on  that  account,  raise  the  question  of  bona  fides, 
and  he  is  now  estopped.^  A  verdict  in  a  summary  pro- 
ceeding, to  remove  a  tenant  for  non-payment  of  rent, 
finding  that  no  rent  is  due,  is  conclusive  in  favor  of  the 
tenant,  in  a  replevin  suit  brought  by  him  to  recover  cattle 
distrained  by  the  landlord,  to  satisfy  the  same  claim  of 
rent.^  The  only  matter  essential  to  making  a  former 
judgment  on  the  merits  conclusive  between  the  same 
parties  is,  that  the  question  to  be  determined  in  the  sec- 
ond action  is  the  same  question  judicially  settled  in  the 
first.  A  judgment  is  conclusive  not  only  as  to  the  sub- 
ject-matter in  suit,  but  as  to  all  other  suits  which,  though 
concerning  other  subject-matters,  involve  the  same  ques- 
tions of  controversy.^  A  judgment  in  favor  of  a  bond- 
holder, upon  certain  municipal  bonds  against  the  town 
issuing  them,  is  conclusive  on  the  question  of  the  validity 
of  other  bonds  being  part  of  the  same  issue,  in  an  action 
between  the  same  parties,  all  the  objections  and  matters 

1  Castle  V.  Noyes,  14  N.  Y.  329.  15  Am.  Dec.  256;   Bouchaud  v.  Dias, 

«  White  V.  Coatsworth,  6  N.  Y.  138.     3   Deiiio,  238;    Babcock  v.  Camp,   12 
«  Gardner  v.  Buckbee,  3  Cow.   120;     Ohio  St.  11. 


451  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  253 

of  defense  in  the  second  action  having  been  equally  avail- 
able to  the  town  in  the  first.^  If  A,  as  a  defense  to  an 
action  against  him,  pleads  that  he  has  been  released  from 
the  liability,  by  virtue  of  his  discharge  in  a  proceeding 
for  the  relief  of  insolvent  debtors,  and  the  plaintiff  seeks 
to  avoid  the  discharge,  on  the  ground  that  it  was  procured 
by  fraud,  a  judgment  for  the  defendant  is  conclusive  in 
his  favor  upon  the  question  of  fraud,  in  any  other  action 
between  the  same  parties,  though  upon  a  different  con- 
tract.^ If  an  issue  is  tried  in  any  proceeding  as  to 
whether  the  defendant  is  a  member  of  a  firm,  the  result 
of  the  trial  will  be  conclusive  between  the  parties  when- 
ever the  same  issue  again  arises  between  them.^  After  a 
judgment  has  been  recovered  for  a  quarter's  rent  upon  a 
lease,  no  defense  can  be  made  in  a  subsequent  action  for 
rent  alleged  to  be  due  upon  the  same  lease,  substantially 
involving  the  same  points  decided  against  the  defendant 
in  the  first  suit.^  If  an  instrument  has  been  judicially 
construed,  this  construction  must  be  adopted  in  every 
other  controversy  between  the  parties,  in  which  the  effect 
of  the  same  instrument  is  brought  in  question.^  A  sold 
land  to  B,  and  agreed  to  cease  keeping  tavern  on  adjacent 
land  as  soon  as  B  built  certain  buildings.  B  afterward 
recovered  in  an  action  for  a  breach  of  this  agreement. 
In  a  second  action,  claiming  damages  for  a  subsequent 
breach,  it  was  held  that  the  only  matters  upon  which 
defendant  was  not  concluded  were  the  subsequent  breach 
and  the  amount  of  damages  resulting  from  it.**  If  a  suit 
to  recover  an  installment  of  purchase-money  is  defended 
on  account  of  an  alleged  failure  of  title  occasioned  by 
encumbrances,  the  decision   of  the    court   is  conclusive 

'  Beloit   V.    Morgan,    7    Wall.    619;  ler,  41  Mich.  90;  Hewlett  v.  Tarte,  10 

San     Antonio     v.     Lane,     32     Tex.  Com.  B.,  N.  S.,  813. 

411.  ^Stewart  v.  Stebbina,  30  Miss.  66; 

^  Merriam  v.  Whittemore,  5   Gray,  Bloodgood    v.    Carsey,    31    Ala.    575; 

316;    Van    Dolsen   v.    Abendroth,    43  Tioga  R.  R.  Co.  v.  B.  &.  C.  R.  R.  Co., 

N.  Y.  Sup.  Ct.  470.  20  Wall.  137;  Lorillard  v.  Clyde,  122 

3  Lynch  v.  Swanton,  53  Me.  100.  N.  Y.  41;  19  Am.  St.  Rep.  470. 

*  Kelsey  w.  Ward,  38  N.  Y.  83;  Love  «  Heichew  r.  Hamilton,  4  G.  Greene, 

V.  Waltz,  7  Cal.  250;  Jacobson.i;.  Mil-  317;  61  Am.  Dec.  122. 


§  253  THE    JUDGMENT    AS    AN    ESTOPPEL.  452 

upou  that  subject,  in  any  future  action,  to  recover  a  sub- 
sequent installment  falling  due  on  the  same  purchase.^ 
After  a  decree  in  favor  of  plaintiff,  upon  a  contract  for 
the  payment  of  money  in  installments,  the  only  question 
open  to  litigation,  in  respect  to  any  subsequent  install- 
ment, is  whether  as  to  it  the  defendant  is  in  default. 
Upon  this  question  the  defendant  is  entitled  to  a  hearing; 
and  if  a  sale  is  made  without  such  hearing,  for  the  pur- 
pose of  paying  a  sum  which  has  fallen  due  since  the  entry 
of  the  original  decree,  and  which  is  alleged  to  remain 
unpaid,  the  sale  is  void.^  The  recovery  by  judgment,  of  a 
sum  claimed  to  be  due  as  interest  on  a  promissory  note, 
precludes  the  defendant  from  contesting  the  payment  of 
the  principal  on  the  ground  that  the  note  was  procured 
by  fraud;^  or  upon  any  other  defense  involved  in  the 
former  suit.*  A  note  and  a  mortgage  for  its  security, 
alleged  to  be  made  at  the  same  time,  are  not  necessarily 
inseparable.  The  note  may  have  been  delivered,  and  the 
mortgage  not;  or  the  former  may  have  been  obtained  by 
fraud  and  duress,  and  the  latter  not.  Hence,  a  judgment 
against  the  validity  of  the  mortgage  does  not  per  se  estab- 
lish the  invalidity  of  the  note.^  If  an  assessment  is  im- 
posed on  certain  lots,  payable  in  installments,  the  recovery 
on  any  installment  unavoidably  affirms  the  validity  of  the 
assessment,  and  precludes  it  from  being  controverted  in 
a  subsequent  action  between  the  same  parties  for  subse- 
quently accruing  installments;''  and  on  the  other  hand, 
where  the  issue  of  the  certificate  of  a  special  assessment 
is  restrained,  on  the  ground  that  the  contract  with  the 
city  was  unauthorized,  the  judgment  is  conclusive  against 
the  city  or  its  assignee  in  an  action  to  collect  the  amount 
of  the  assessment.^  Some  of  the  English  courts,  if  we 
may  judge  from  the  opinions  expressed  by  Lord  Chelms- 

1  Kane  v.  Fisher,  2  Watts,  246.  ?  Lander  v.  Arno,  65  Me.  26. 

«  Perkins  v.  Perkins.  16  Mich.   162.  «  People  v.  Brislin,  80  III.  423;  Leh- 

s  Edgell  V.  Sigerson,  26  Mo.  583.  mer  v.  People,  80  111.  601. 

*  Black  River  Savings  Bank  v.  Ed-  "  Lawrence  v.  Milwaukee,  45   Wis, 

wards,  10  Gray,  387.  306. 


453  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  253 

ford,  deny  the  application  of  the  principle  of  res  judicata 
to  cases  where  the  subject-matter  of  the  two  suits  is  not 
identical.  Hence  he  determined  that  a  judgment  against 
one  poor-rate  was  not  binding  in  a  controversy  in  refer- 
ence to  a  subsequent  rate,  though  the  issues  in  the  two 
controversies  were  the  same.' 

The  effect  of  a  judgment  upon  a  subsequent  action  in- 
volving the  same  issues,  but  a  different  though  similar 
subject-matter,  has  recently  been  very  fully  considered  in 
the  supreme  court  of  the  United  States.  The  conclusion 
there  reached  is,  that  when  any  issue  is  in  fact  litigated 
and  determined,  such  determination  is  conclusive  upon 
the  parties  and  their  privies  in  any  subsequent  action  in 
which  the  same  issue  is  drawn  in  question,  though  the 
subject-matter  of  the  action  is  different.  In  order  to  suc- 
cessfully invoke  this  rule,  it  must  be  shown  that  in  the 
former  action  the  issue  was  in  fact  litigated  and  decided. 
It  is  not  sufficient  that  it  was  there  so  involved  that  it 
might  have  been  litigated.  With  respect  to  the  subject- 
matter  of  an  action,  each  party  must  bring  forward  every 
cause  of  action  or  defense  involved  in  the  pleadings,  and 
the  judgment  will  often  be  conclusive  not  only  upon  the 
matters  litigated,  but  also  upon  those  which  the  parties 
might  have  litigated  in  that  action.  But  in  a  subsequent 
action  involving  a  different  subject-matter,  the  former 
adjudication  cannot  be  relied  upon,  unless  it  appears,  not 
that  the  issue  now  presented  was  presented,  and  ought  to 
have  been  litigated  in  the  prior  action,  but  furtlier,  that 
it  was  litigated  and  decided,  as  well  as  involved.-  Thus 
where  a  suit  to  recover  upon  certain  coupons  failed,  be- 
cause it  was  not  shown  that  the  plaintiff  was  a  purchaser 
of  the  bonds  to  which  they  were  attached,  for  value  and 
before  maturity,  he  was  held  not  to  be  estopped  in  an  ac- 
tion on  the  bonds  from  showing  that  he  did  purchase 
them  before  maturity,  it  not  appearing  that  tliis  issue  was 

'  Commissioners  V.  Inspectors,  L.  R.  U.  S.  351;  4  Cent.  L.  J.  416;  Davis 
1  H.  L.  S.  22.  r.  Brown,   94  U.    S.    423;   Russell   v. 

^Cromwell    v.    County    of    Sac,    94     Place,  94  U.  S.  606. 


254 


THE    JUDGMENT    AS    AN    ESTOPPEL. 


454 


the  subject  of  controversy  in  the  former  suit/  So,  also, 
the  omission  of  the  indorser  of  a  series  of  notes,  when 
sued  upon  one  or  more  of  them,  to  assert  a  defense  equally 
available  as  against  all  of  them  does  not  preclude  him 
from  relying  upon  such  defense  when  sued  upon  other 
notes  of  the  same  series.^ 

§  254,  Identity  of  Purpose.  —  It  has  been  said  that,  the 
cause  and  object  of  the  action  being  the  same,  the  former 
judgment  bars  the  suit;  but  the  principle  runs  through 
nearly  all  the  American  cases,  that  a  judgment  is  conclu- 
sive, if  upon  the  direct  point,  though  the  objects  of  the 
two  suits  are  different.^    A  judgment  against  the  assignee 

^  Cromwell  v.  County  of  Sac,  94 
U.  S.  351.  In  this  case  Judge  Field, 
delivering  the  opinion  of  the  court, 
said:  "In  considering  the  operation  of 
this  judgment  it  should  be  borne  in 
mind,  as  stated  by  counsel,  that  there 
is  a  difference  between  the  effect  of  a 
judgment  as  a  bar  or  estoppel  against 
the  prosecution  of  a  second  action  upon 
the  same  claim  or  demand,  and  its  effect 
as  an  estoppel  in  another  action  be- 
tween the  same  parties  upon  a  differ- 
ent claim  or  cause  of  action.  In  the 
former  case,  the  judgment,  if  rendered 
upon  the  merits,  constitutes  an  abso- 
lute bar  to  a  subsequent  action.  It  is 
a  finality  as  to  the  claim  or  demand  in 
controversj',  including  parties  and 
those  in  privity  with  them,  not  only 
as  to  every  matter  which  was  offered 
and  received  to  sustain  or  defeat  the 
claim  or  demand,  but  as  to  any  other 
admissible  matter  which  might  have 
been  offered  for  that  purpose.  Thus, 
for  example,  a  judgment  rendered 
upon  a  promissory  note  is  conclusive 
as  to  the  validity  of  the  instrument 
and  the  amount  due  upon  it,  although 
it  be  subsequently  alleged  that  perfect 
defenses  actually  existed,  of  which  no 
proof  was  offered,  such  as  forgery, 
want  of  consideration,  or  payment. 
If  such  defenses  were  not  presented  in 
the  action,  and  established  by  compe- 
tent evidence,  the  subsequent  allega- 
tion of  their  existence  is  of  no  legal 
consequence.  The  judgment  is  as  con- 
clusive, so  far  as  future  proceedings  at 
law  are  concerned,  as  though  the  de- 
fenses never  existed.     The  language, 


therefore,  which  is  so  often  used,  that 
a  judgment  estops  not  only  as  to  every 
ground  of  recovery  or  defense  actually 
presented  in  the  action,  but  also  as  to 
every  ground  which  might  have  been 
presented,  is  strictly  accurate  when 
applied  to  the  demand  or  claim  in  con- 
troversy. Such  demand  or  claim,  hav- 
ing passed  into  judgment,  cannot  again 
be  brought  into  litigation  between  the 
parties  in  proceedings  at  law  upon  any 
ground  whatever.  But  where  the  sec- 
ond action  between  the  same  parties  is 
upon  a  different  claim  or  demand,  the 
judgment  in  the  prior  action  operates 
as  an  estoppel  only  as  to  those  matters 
in  issue,  or  points  controverted,  upon 
the  determination  of  wliich  the  findmg 
or  verdict  was  rendered.  In  all  cases, 
therefore,  where  it  is  sought  to  apply 
the  estoppel  of  a  judgment  rendered 
upon  one  cause  of  action  to  matters 
arising  in  a  suit  upon  a  different  cause 
of  action,  the  inquiry  must  always  be 
as  to  the  point  or  question  actually 
litigated  and  determined  in  the  origi- 
nal action,  not  what  might  have  l)een 
thus  litigated  and  determined.  Only 
upon  such  matters  is  the  judgment 
conclusive  in  another  action." 

^  Davis  V.  Brown,  94  U.  S.  423;  Rus- 
sell V.  Place,  94  U.  S.  606.  The  ten- 
dency in  the  English  courts  is  to  con- 
fine the  effect  of  a  judgment  estoppel 
to  the  issues  actually  litigated:  Gou- 
cher  V.  Clayton,  II  Jur.,  N.  S.,  107; 
34  L.  J.  Ch.  239;  13  Week.  Rep.  336. 

^  Note  261  to  Phillipps  on  Evidence; 
Barker  v.  Cleaveland,  19  Mich.  230; 
but  in  Robinson  v.  Kruse,  29  Ark.  575, 


455  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  255 

of  an  insolvent  debtor,  in  an  action  brought  to  set  aside 
a  conveyance,  is  conclusive  against  him  in  an  action  of 
trover,  to  recover  of  the  same  defendants  any  of  the  prop- 
erty included  in  the  convej-ance/  One  who  defends  an 
action  to  recover  for  work,  on  the  ground  that  the  work 
was  so  done  as  to  be  of  no  value,  and  fails  to  establish 
his  defense,  is  precluded  from  afterward  maintaining  any 
suit  against  the  plaintiff  for  damages  alleged  to  have  arisen 
from  the  unskillful  doing  of  the  same  work.^ 

§  255.  Identity  of  Form  of  Action.  —  By  the  rules  of 
the  civil  as  well  as  of  the  common  law,  "res  judicata  is 
not  changed  by  a  change  in  the  form  of  action,"^  It  is 
not  material  that  the  form  of  action  be  the  same,  if  the 
merits  were  tried  in  the  first.^  A  judgment  for  the  de- 
fendant in  trover,  for  conversion  of  goods,  is  a  bar  to  an 
action  against  him  for  money  had  and  received  from  the 
proceeds  of  the  sale  of  the  same  goods.  No  party  can 
bring  the  same  cause  of  action  twice  to  a  final  determi- 
nation.^  Hence  judgment  for  defendant,  in  an  action  of 
trover,  estops  plaintiff  from  maintaining  assumpsit  for  the 
value  of  the  goods  which  in  the  former  action  were  claimed 
to  have  been  converted,^  or  trespass  for  taking  them;'  a 
decision  against  the  claimant  on  a  trial  of  the  right  of 
property  concludes  him  in  an  action  of  trover  against  the 
same  officer  for  converting  the  same  property;^  a  judg- 
ment in  favor  of  a  bank,  in  an  action  against  it  for  the 

the  recovery  by  plaintifif  in   replevin  121   Ind.   483;  Harryman  v.  Roberts, 

was  decided  not  to  prevent  the  defend-  52  Md.  64;  Thomas  v.  Merry,  113  Ind. 

ant  from  sustaining  an  action  against  83;  Hatch  v.  Coddington,  32  Minn.  92; 

the  former  plaintiff  for  the  conversion  Hellebush  v.  Richter,  37  Ohio  St.  222; 

of  the  same  property.  Edwards    v.     Baker,     99   N.    C.    258; 

1  Bigelow  V.  Winsor,  1  Gray,  299.  Schroers  v.  Fish.  10  Col.  599;  Sander- 

2  Merriam  v.  Woodcock,  104  Mass.  son  v.  Peabody,  58  N.  H.  116;  Murphy 
326.  V.  De  France,  101  Mo.  151. 

5  Pothier  on  Obligations,  pt.  4,  c.  3,  *  Lawrence   e.  Vernon,   5  Sum.   20; 

sec.  3,  art.  4;  Eastman  v.  Cooper,  15  Hitchin  v.  Campbell,  2  VV.  Black.  778, 

Pick.  285.  827;  Ferrer's  Case,  6  Coke,  7. 

1  Moore  v.  Williams,    132  111.   589;  «  Agnew  v.  Martin,  10  Smedes  &  M. 

Marsh  V.  Pier,  4  Rawle,  273;  26  Am.  552;  48  Am.  Dec.  772. 

Dec.    131;    White  v.   Martin,    1   Port.  '  Hite  v.  Long,  6  Rand.  457;  18  Am. 

215;    26    Am.     Dec.    365;    Owens    v.  Dec.  719. 

Rrdeigh,   6  Bush,  656;  Bell  v.  McCul-  »  Krenchi  v.  Dehlcr,  50  111.  176;  Ste- 

loch,  31  Ohio  St.  397;  Sewell  v.  Scott,  vens  v.  Springer,  23  Mo.  App.  375. 
35  La.  Ann.  553;  Lieb  v.  Lichtenstein, 


§  256  THE    JUDGMENT    AS    AN    ESTOPPEL.  456 

conversion  of  a  note,  is  conclusive  in  its  favor  in  a  subse- 
quent action  against  it  by  the  same  plaintiff  for  money 
had  and  received  to  his  use,  being  the  proceeds  of  the 
same  note;^  and  a  judgment  for  the  defendant,  in  an 
action  for  malicious  prosecution,  has  been  held  to  bar  a 
subsequent  action  for  slander  in  making  the  same  charge 
uttered  before  the  bringing  of  the  first  action.^  The  form 
of  the  prior  action  is  immaterial,  if  it  was  such  as  to  per- 
mit a  trial  on  the  merits.  If  proper  parties  join  issue 
upon  a  question  of  law  or  of  fact,  before  a  competent  court, 
they  must  abide  by  the  decision.  Hence  it  was  held  in 
Louisiana  that  a  party  who  had  proceeded  by  rule  or 
motion,  and  had  in  that  manner  had  a  complete  hearing 
on  the  merits,  resulting  in  a  discharge  of  the  rule,  was 
barred  from  obtaining  an  injunction  in  an  action  brought 
for  that  purpose,  unless  he  could  show  other  facts  than 
those  existing  at  the  time  of  discharging  the  rule.^ 
Whether  and  when  the  decision  of  a  motion  is  entitled  to 
the  effect  o?  res  judicata  is  a  question  upon  which  the  au- 
thorities disagree,  and  which  will  be  considered  hereafter.'' 
But  "when  one  is  barred  in  any  action,  real  or  personal, 
by  a  judgment  on  demurrer,  confession,  verdict,  etc.,  he 
is  barred  as  to  that  or  the  like  action  of  the  like  nature 
for  the  same  thing  forever."  ^ 

§  256.  Identity  of  Issues.  —  It  will  be  seen  from  ex- 
amining the  authorities  already  cited  that  to  render  any 
judgment  or  other  final  adjudication  proceeding  from  a 
court  of  competent  jurisdiction  available  as  a  bar  in  a  sec- 
ond action  between  the  same  parties  or  their  privies,  two 
things  only  are  essential,  viz.:  1.  That  the  issue  in  the  sec- 
ond action,  upon  which  the  judgment  is  brought  to  bear, 
was  a  material  issue  in  the  first  action,  necessarily  deter- 
mined   by  the  judgment  therein;®    2.    That  the  former 

'  State  Bank  v.  Rude,  23  Kan.  143.  *  Post,  sees.  325-327. 

2  Tedwell  v.   Witherspoon,  21   Fla.  *  Westcott    v.    Brock,    2   Col.    335; 

359:  58  Am.  Rep.  6li5.  Geisriter  v.  Sevier,  32  Ark.  522. 

^  Trescott  v.  Lewis,  12  La.  Ann.  197.  ®  Graceland  Cemetery  Co.  v.  People, 

See  also  Brown  v.  Moran,  42  Me.  44.  92  111.  G19;  Blackwell  v.  Bragg,  78  Va. 


457  THE    JUDGMENT   AS    AX    ESTOPPEL.  §  256 

judgment  was  upon  the  merits.  The  chief  difficulty  ia 
applying  a  former  judgment  to  a  present  litigation  arises 
from  the  necessity  of  determining  what  were  the  matters 
affirmed  or  denied  by  the  former  decision.  In  determining 
this  question,  it  ma}'  be,  and  frequently  is,  impossible  to 
obtain  sufficient  data  to  form  any  satisfactory  conclusion, 
without  looking  beyond  the  record  in  the  former  suit,  and 
ascertaining  from  any  other  competent  evidence  what 
were  the  real  issues  brought  before  the  court,  and  neces- 
sarily entering  into  the  consideration  of  the  judgment. 
And  whether  the  issues  in  the  former  action  sufficiently 
appear  from  the  record,  or  are  made  known  by  extrinsic 
proofs,  the  necessity  still  remains  of  deciding  whether  a 
matter  controverted  at  the  former  trial  was  a  material 
issue,  or  a  mere  matter  of  evidence  brought  forward  to 
aid  in  establishing  some  material  issue.  Courts  have, 
from  time  to  time,  endeavored  to  lay  down  general  rules, 
or  more  properly  speaking,  general  descriptions,  by  which 
to  determine  what  questions  are  and  what  are  not  settled 
by  a  former  adjudication.  We  shall  now  state  some  of 
these  general  descriptions,  leaving  the  reader  to  harmo- 
nize them  if  he  can,  and  feeling  that  if  he  cannot  he  is 
not  less  successful  than  we  have  been. 

A  judgment  is  conclusive  upon  every  matter  actually 
and  necessarily  decided  in  the  former  suit,  though  not 
then  directly  the  point  in  issue.  If  the  facts  involved  in 
the  second  suit  are  so  cardinal  that  without  them  the 
former  decision  cannot  stand,  they  must  now  be  taken  as 
conclusively  settled.  In  an  order  of  settlement,  John  G. 
and  William  G.  were  adjudged  to  be  the  lawful  children 
of  William  G.  and  Esther  G.,  and  to  have  their  settlement 
in  a  certain  township.  Afterward  a  contest  arose  in  rela- 
tion to  the  settlement  of  Esther  G.  Whereupon  it  was 
considered  that  as  the  settlement  of  the  children  depended 

529;  Bouchard  v.  Parker,  32  La.  Ann.  7  Gray,  499;  66  Am.  Dec.  518;  Newby 
535;  Doty  v.  Brown,  4  N.  Y.  71;  53  v.  Caldwell,  54  Iowa,  102;  Huntley  v. 
Am.  Dec.  350;  Sawyer  v.  Woodbury,     Holt,  59  Conn.  102;  21  Am.  St.  Rep.  71. 


§  256  THE    JUDGMENT    AS    AN    ESTOPPEL.  458 

on  that  of  their  father,  and  on  his  marriage  with  their 
mother,  Esther,  the  father's  settlement  and  marriage 
must  have  been  decided  as  the  ground-work  of  the  former 
order,  and  that  as  those  facts  which  upheld  the  order  of 
settlement  of  the  children  were  necessarily  and  exclusively 
applicable  to  their  mother,  her  settlement  was  fixed  by 
the  decision  in  relation  to  that  of  her  children.^  And  in 
Vermont  it  was  decided  that  the  adjudication,  upon  an 
order  of  removal,  that  a  woman  had  a  settlement  in  W. 
was  conclusive  between  the  same  parties  in  a  proceeding 
to  remove  her  illegitimate  son,  who,  being  a  minor,  could 
obtain  no  settlement  for  himself,  and  whose  settlement  was 
therefore  necessarily  identical  with  that  of  his  mother.^ 

In  a  number  of  cases  several  notes  were  given  in  pay- 
ment for  property  purchased  of  the  payee;  and  in  a  suit 
on  the  first  note  due,  the  defense  of  want  of  consideration 
arising  from  fraud  in  the  sale,  or  from  the  worthless 
character  of  the  property  sold,  was  made.  In  cases  of 
this  character,  and  in  all  other  cases  where  several  notes 
or  other  obligations  are  given,  against  all  of  which  a  par- 
ticular defense  is  equally  applicable,  or  where  a  single 
contract  is  payable  in  installments,  if  such  defense  is 
interposed  against  either  note,  obligation,  or  installment, 
and  determined  either  to  be  or  not  to  be  an  existing  and 
sufficient  defense,  such  determination  is  conclusive  of  the 
existence  or  non-existence  of  such  defense  in  any  subse- 
quent action  upon  any  other  note,  obligation,  or  install- 
ment."'' To  have  this  effect,  it  must  appear  that  the  defense 
passed  upon  in  the  former  action,  conceding  it  to  have 

1  Regina  v.   Hartington,  4  El.  &  B.  Hart,     66     Miss.     642;     Trescott     v. 

780.  Barnes,    51    Iowa,    409;   Aultman    v. 

^  Cabot     V.     Washington,     41     Vt.  Mount,  62  Iowa,  674;  French  v.  Smith, 

168.  88  Ind.  149;  45  Am.  Rep.  454;  Foster 

*  Cleveland  y.  Creviston,  93  Ind.  31;  v.   Konkright.  70  Ind.   123;  Kilander 

47  Am.  Rep.  267;  Bank  of  New  Lon-  v.   Hoover,    111  Ind.    10;  Furneaux  v. 

don  V.  Ketchum,  66  Wis.  428;  Gaml-  First  N.  B.,  39  Kan.   144;  7  Am.   St. 

ner  v.  Buckbee,  3  Cow.    120;   15  Am.  Rep.   541;    Young  v.   Brehe,    19  Nev. 

Dec.  256;  Freeman  v.  Bass,  34  Ga.  355;  379;   3   Am.    St.    Rep.    892.     Contra, 

89   Am.    Dec.  255;    Mason   L.  Co.  v.  Eastman  v.   Cooper,   15  Pick.  276;  26 

Butchel,     101    U.    S.    638;    Davis    v.  Am.  Dec.  60. 


459  THE    JUDGMENT   AS   AN    ESTOPrEL.  §  256 

existed,  was  necessarily  conclusive  of  the  demand  sued 
upon  in  the  second  action;^  for  it  may  have  been  a  partial 
defense,  applicable  only  to  the  demands  against  which  it 
was  interposed,  or  in  the  nature  of  a  counterclaim  for 
damages,  which,  being  allowed  and  compensated  in  the 
first  action,  cannot  again  be  set  off  or  recovered  in  the 
second.     A  judgment    for  or  against  the  validity  of  a 
coupon  is  generally  conclusive  for  or  against  every  other 
coupon  attached  to  the  same  bond.^     In  New  York,  where 
A  and  B  were  sureties  for  the  same  person  on  two  bonds, 
an  action  by  A  for  contribution  from  B,  for  money  paid 
upon  one  bond,  was  held  to  be  conclusive  in  a  like  suit 
upon  the  other  bond,  the  same  defense  being  offered  in 
both  suits.^     In  New  York  it  is  well  settled  that  the  re- 
covery by  a  physician  of  a  judgment  upon  his  claim  for 
professional    services   is    a  conclusive   affirmance  of  the 
valuable  character  of  those  services,  and,  as  such,  is  a  bar 
to  any  action  against  him  for  malpractice,*  although  the 
former  judgment  was  rendered  without  any  claim  of  mal- 
practice  being    offered    as   a  defense,^  or  although  such 
defense  was  expressly  withdrawn  before  going  to  trial." 
E.,  a  tenant,  committed  an  act  of  bankruptcy.     An  as- 
signee was  appointed,  who  entered  on  the  demised  land, 
and  drove  off  cattle  to  prevent  their  being  distrained. 
They  were  pursued  and  seized  by  the  landlord's  bailiff. 
The  assignee  brought  an  action  of  replevin  for  the  cattle. 
This    action   turned    upon    the    question   whether    the 
assignee,  by  his  entry,  became  a  tenant;  that  is,  whether 
he  had  elected  to  receive  the  lease  instead  of  relinquish- 
ing   it    as    damnosa  hereditas.     The    action  having    been 
determined  against   him,  it  was  held,  in    a   subsequent 

1  Clark  V.  Sammons,   12  Iowa,  368;  Iowa,  595;  Block  v.  Bourbon  Co.,  99 

Knickerbocker  v.  Ream,  42  Kan.    17;  U.  S.  686. 

Knorr    v.    Peerless    Reaper    Co.,    23  '  Bouchaiid  v.  Dias,  3  Demo,  243. 

Neb.  636;  8  Am.  St.  Rep.  140;  Felton  *  Edwards    v.    Stewart,     15     Barb. 

V.  Smith,  88  Ind.   149;  45  Am.   Rep.  67. 

454.  *  Gates  v.  Preston,  41  N.  Y.  113. 

■^  Bissell  V.  Spring  Valley,  124  U.  S.  «  Bellinger  v.  Craigue,  31  Barb.  534. 

225;  Whitaker  v.  Johnson  County,  12  See  yost,  sec.  282, 


§  256  THE    JUDGMENT    AS    AN    ESTOPPEL,  460 

controversy  between  him  and  the  landlord,  to  conclusively 
establish  his  tenancy.^ 

If  in  any  action  based  upon  an  alleged  leasing  the 
existence  or  validity  of  the  lease  is  denied,  or  it  is  sought 
to  be  avoided  on  some  ground,  the  judgment  in  such 
action  is  conclusive  in  all  subsequent  actions  of  the  exist- 
ence or  non-existence,  validity  or  non-validity,  of  such 
lease.^  The  same  rule  applies  to  other  writings.  If  a 
writing  is  assailed  on  some  ground,  as  where  it  is  claimed 
to  be  fraudulent,  forged,  or  altered,  the  determination  of 
this  question  is  conclusive  in  all  subsequent  contro- 
versies;^ and  if  it  is  determined  to  be  invalid  because  of 
the  mental  capacity  of  the  person  executing  it,  this  is 
conclusive  that  other  writings  executed  at  the  same  time 
were  invalid  for  the  same  reason.*  So  if  a  contract  is 
construed,  or  a  party  is  determined  not  to  be  entitled  to 
its  benefit,  such  construction^  or  determination^  is  con- 
clusive in  subsequent  controversies. 

A  good  illustration  of  the  rule  that  the  effect  of  a  former 
adjudication  extends  to  every  question  necessarily  litigated 
between  the  parties,  and  is  not  confined  to  actions  having 
the  same  purpose  or  involving  the  same  subject-matter,  is 
found  in  a  case  decided  by  the  supreme  court  of  Califor- 
nia. J.,  W.,  and  T.  made  a  note  in  favor  of  D.  T.,  being 
the  owner  of  a  tract  of  land,  soon  after  conveyed  it  to  D. 
After  the  maturity  of  the  note,  D.  sued  J.,  T.,  and  W.  upon 

1  Hancock  v.  Welsh,   1  Stark.  347.  McWilliams  v.  Morrell,  23  Him,   ]62 

A  gave  a  horse  to  B  to  board,  with  in-  Jacobsou    v.    Miller,    41     Mich.     90 

structious  not  to  use  him.     B  used  the  Nemetty   v.    Mayor,   100  N.   Y.  562 

horse   and  foundered   him.     A  aban-  Oregonian   R'y  Co.  v.   Oregon  R'y  & 

doned  the  horse  and  sued  for  his  con-  N.  Co.,  27  Fed   Rep.  277. 

version.     B  then  sued  for  the  horse's  ^  Ballard  v.  Franklin  L.  I.  Co.,  81 

board.     A  set  up  defense  of  the  con-  Ind.  239;  Haniia  v.  Read,  102  111.  596; 

version.     The    justice,    on    demurrer,  40  Am.  Rep.  608;  Yates  v.  Yates,   81 

overruled  this  defense,  and  afterwards  N.  C.  397;  Lawrence  v.  Milwaukee,  45 

entered    judgment  against    A  for  the  Wis.  306. 

horse's  board.     This  was  held  to  estop  *  Hanna  v.   Read,   102   111.596;   40 

A   from   maintaining    his   action    for  Am.  Rep.  608. 

conversion,  because  it  was  not  possible  ^  Buchanan  v.  Smith,  75   Mo.  463; 

for  A  to  have  been  lialde  for  the  board,  Lorillard  v.   Clyde,    122  N.Y.   41;  19 

if    B    had    previously    converted    the  Am.  St.  Rep.  470;  Robinson  v.  Fries, 

horse:  <Jollins  v.  Bennett,  46  N.  Y.  490.  22  Fla.  .303. 

=*  Wilson  V.    Deen,  121    U.   S.  525;  ^  Noyes  v.  Kern,  94  III.  521. 


461  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  256 

it.  J.  made  no  defense.  T.  and  W.  answered  that  they 
were  accommodation  makers  without  any  considerations, 
and  that  the  deed  to  D.  was  made  and  accepted  as  a  dis- 
charge of  the  note.  Issue  was  taken  upon  this  point,  and 
the  trial  of  the  case  was  directed  to  the  question  whether 
the  deed  was  accepted  as  a  security  or  as  a  satisfaction  of  the 
debt.  The  jury  found  in  favor  of  the  defendants,  and  judg- 
ment was  entered  accordingly.  Two  days  after  the  entry 
of  this  judgment,  T.  conveyed  the  same  lands  to  J.,  who 
thereafter  commenced  suit  against  D.  to  recover  them  on 
the  ground  that  the  former  deed  to  D.  was  a  mortgage. 
It  was  held  that  the  character  of  the  deed  was  in  "issue  in 
the  former  action,  and  that  J.  could  not  prove  its  char- 
acter to  be  different  from  what  it  was  then  determined  to 
be.^ 

The  principle  underlying  and  supporting  all  these  de- 
cisions is,  that  a  judgment  necessarily^  affirming  or  deny- 
ing a  fact  is  conclusive  of  its  existence  whenever  it  becomes 
a  matter  in  issue  between  the  same  parties  or  between 
parties  in  privity  with  them.^  Therefore  a  judgment 
abating  a  nuisance  to  a  public  highway  is  conclusive  of 
the  existence  both  of  the  highway  and  of  the  nuisance;' 
a  judgment  for  the  defendant  in  an  action  for  obstructing 
a  watercourse,  if  based  upon  the  ground  that  there  was 
no  watercourse  to  be  obstructed,  is  in  subsequent  actions 
conclusive  of  the  non-existence  of  such  watercourse;'*  but 
if  the  judgment  had  been  for  the  plaintiff,  it  would  neces- 
sarily have  been  conclusive  in  other  actions  of  the  exist- 
ence of  the  watercourse  and  of  its  obstruction."  If  an 
action  is  brought  to  recover  wages,  and  defended  on  the 
ground  that  there  was  no  contract  of  hiring,  or  that  the 
plaintiff  had  been  rightfully  discharged,  the  judgment 
affirming  or  denying  either  the  contract  or  the  rightful- 
ness of  the  discharge  is  conclusive  in  subsequent  actions 

1  Jackson  v.  Lodge,  36  Cal.  28.  ^  Hahn  v.  Miller,  68  Iowa,  745. 

'Gould  V.   Sternberg,   128  111.  510;  *  Byrne  i;.  Minneapolis  etc.  R'y  Co., 

15  Am.  St.  Rep.  138.  38   Minn.  212;   8  Am.   St.   Rep.   688; 

*  Brant  v.  Plunier,  64  Iowa,  33.  McLeod  v.  Lee,  17  Nev.  103. 


§  256  THE    JUDGMENT    AS    AN    ESTOPPEL.  462 

in  which  the  same  issue  is  material.^  A  decision  in  a 
suit  in  equity  to  reform  a  description  in  a  deed,  that  a 
survey  must  commence  at  a  point  designated,  is  conclusive 
of  that  question  in  a  subsequent  action  of  ejectment.^ 

If  the  issues  in  the  second  action  are  necessarily  dif- 
ferent from  those  in  the  first,  the  judgment  in  the  latter 
is  not  conclusive  of  the  former;^  but  one  cannot,  by  ten- 
dering an  immaterial  issue  in  the  second  action,  avoid 
the  effect  of  an  issue  determined  against  him  in  the  for- 
mer suit/  Generally,  if  the  issues  in  the  second  action 
are  necessarily  different  from  those  in  the  first,  and  the 
cause  of  action  or  of  defense  alleged  therein  may  co-exist 
with  the  matters  determined  in  the  former  suit,  the  judg- 
ment therein  is  not  conclusive  of  the  second.^  Hence  a 
judgment  for  defendant  in  an  action  for  seduction  accom- 
plished under  promise  of  marriage  is  not  conclusive  in 
his  favor  in  a  subsequent  action  for  a  breach  of  promise 
of  marriage;  for  he  may  have  promised  the  marriage  and 
been  guilty  of  a  breach  of  such  promise,  without  having 
seduced  plaintiff  by  reason  thereof.''  So  if  the  cruelty 
which  amounts  to  the  abandonment  of  a  wife  does  not 
necessarily  entitle  her  to  a  divorce  on  the  ground  of  ex- 
treme cruelty,  the  denial  to  her  of  a  divorce  on  that  ground 
is  not  conclusive  in  a  second  action  by  her  seeking  a 
divorce  on  the  ground  of  abandonment  resulting  from 
the  husband  compelling  her  to  live  apart  from  him  by 
means  of  the  same  acts  of  cruelty  relied  upon  in  the  for- 
mer suit/ 

There  is  one  class  of  actions  in  which  a  former  judg- 

*  Strauss  v.  Meertief,  64  Ala.  299;  Mich.  193;  Geneva  Bank  v.  Riverside 
38  Am.  Rep.  8;  Kennedy  i--.  McCarthy,  School  Dist.,  25  Fed.  Rep.  629;  Leon- 
73  Ga.  346.  '  ard  v.  Whitney,  109  Mass!  26.5;  Palmer 

2  Mueller  v.  Henning,  102  111.  646.  v.  Hussey,  87 'N.  Y.  303;  Mclntyre  v. 

^Fairchild  v.  Lynch,  99  N.  Y.  359.  Storey,  80111.  127;  Keator  v.  St.  John, 

*  Montgomery  n.  Harrington,  58  Cal.  42  Fed.  Pv,ep.  585;  Sheble  v.  Strong, 
270.  128  Pa.  St.  315;  Hosford  v.  Wynn,  26 


»  Bowen  v.  Mandeville,  95  N.  Y.  237 
Scully  V.  Lowenstein,  56  Miss.  652 
Fishburne  v.  Ferguson,  85  Va.  321 
Gilmer  v.   Morris,  30  Fed.  Rep.  476 


S.  0.  130;  Wixson  v.  Devine,  80  Cal. 
S85. 

•^  Ireland  v.   Emmerson,  93  Ind.  1; 
47  Am.  Rep.  364. 


Lake  Shore  etc.  R'y  Go.  v.  People,  46        '  Rand  v.  Rand,  58  N.  H.  536. 


463  THE    JUDGMENT    AS    AN    ESTOPPEL.  §   256 

ment  is  conclusive,  though  the  issues  in  the  first  action 
are  different  from  those  in  the  second;  but  where  this  is 
so,  it  is  the  law  of  election  between  inconsistent  remedies, 
rather  than  the  law  of  estoppel,  which  controls.  Thus 
one  defeated  in  an  action  wherein  he  elected  to  pursue 
a  particular  remedy  may  afterwards  be  denied  a  remedy 
open  to  him  in  the  first  place,  had  he  then  chosen  to 
adopt  it,  if  the  facts  essential  to  support  the  second  action 
are  necessarily  inconsistent  with  those  relied  upon  in  the 
first.  Ini  several  instances,  cases  have  been  determined 
upon  this  principle,  which,  in  our  judgment,  did  not 
necessarily  fall  within  it.  Thus  judgments  in  favor  of 
defendants  in  actions  wherein  they  sued  upon  contracts 
have  frequently,  and  perhaps  uniformly,  been  hehl  to 
debar  plaintiffs  from  maintaining  suits  to  reform  such 
contracts.^  So  one  suffering  defeat  in  an  action  on  a  prom- 
issory note  on  the  ground  of  its  fraudulent  alteration  will 
not  be  permitted  to  recover  on  the  original  indebtedness;^ 
and  it  has  been  held  that  a  receiver  of  an  insolvent  estate 
failing  in  his  attack  upon  a  deed,  upon  the  ground  of  its 
being  without  consideration,  cannot  afterwards  assail  it 
as  a  fraudulent  preference.^ 

A  few  cases  may  be  found  determined  in  apparent  oblivi- 
ousness of  the  rule  that  an  issue  necessarily  determined 
in  one  action  cannot  be  relitigated  in  another  between 
the  same  parties.  Thus  in  an  early  case  in  New  Hamp- 
shire, the  plaintiff  recovered  damages  for  the  non-fulfill- 
ment of  a  contract  to  work  for  a  year,  though  he  had 
defended  an  action  against  him  by  the  defendant  for  two 
months'  labor  of  the  same  year,  on  the  ground  of  a  special 
hiring  for  the  whole  year,  and  had  failed  in  his  defense.^ 
In  New  Jersey,  a  chief  of  police  was  discharged  on  a  cer- 
tain day  by  the  town  council,  if  it  had  power  to  do  so. 

1  Thomas  v.  Joslin,  36  Minn.   1;    1         ^  gykeg  ».  Gerber,  98  Pa.  St.  179. 
Am.  St.  Rep.  624;  Steinbach  v.  Relief        *  Patterson  v.  Wold,  33  Fed.  Rep. 

Fire  Ins.   Co.,  77  N.  Y.  498;  33  Am.  791. 

Rep.  655;  Thwing  v.   Great  W.   Ins.         *  Town  v.   Nims,  5  N.    H.   259;  20 

Co.,  Ill  Mass.  93;  Washburnu  Great  Am.  Dec.  57S.  See  Metcalf  v.  Gilmore, 

W.  Ins.  Co.,  114  Mass.  175.  03  N.  H.  174. 


§  257  THE    JUDGMENT    AS    AN    ESTOPPEL.  464 

He  commenced  a  suit  for  his  salary,  after  the  attempted 
discharge,  and  obtained  judgment.  He  then  sued  for 
salary  accruing  after  the  commencement  of  the  former 
action.  It  was  conceded  that  the  question  of  his  discharge 
was  decided  in  his  favor  in  the  first  suit;  but  it  was  con- 
sidered the  question  was  not  concluded  in  the  second 
action  because  it  was  a  matter  of  laiv}  So  in  Indiana,  an 
adjudication,  in  an  action  to  recover  certain  property,  that 
the  assignment  under  which  plaintiff  claimed  was  void  on 
account  of  being  tainted  by  fraud,  was  held  to  be'confined 
in  its  effect  to  the  subject-matter  of  that  controversy,  and 
not  to  impair  the  claim  of  the  plaintiff  to  other  property 
included  in  the  same  assignment,^  An  entirely  similar 
opinion  is  supported  by  the  courts  of  New  Hampshire,  on 
the  grounds  that  the  assignment  is,  in  the  first  action,  a 
matter  of  evidence,  and  not  a  matter  in  issue;  and  that 
the  only  issue  before  the  court  is,  whether  plaintiff  has 
title  to  the  subject-matter  of  the  suit.* 

§  257.  Extends  only  to  Facts  in  Issue.  —  The  former 
verdict  is  conclusive  only  as  to  fact.s  directly  and  dis- 
tinctly put  in  issue,  and  the  finding  of  which  is  necessary 
to  uphold  the  judgment.*  The  doctrine  of  estoppel  is  re- 
stricted to  facts  directly  in  issue,  and  does  not  extend  to 
facts  which  may  be  in  controversy,  but  which  rest  in  evi- 
dence, and  are  merely  collateral.  "A  fact  or  matter  in 
issue  is  that  upon  which  plaintiff  proceeds  by  his  action, 
and  which  the  defendant  controverts  in  his  pleadings, 
while  collateral  facts  are  such  as  are  offered  in  evidence 
to  establish  the  matters  or  facts  in  issue."''  "It  must  ap- 
pear that  the  matter  set  up  as  a  bar  was  in  issue  in  the 
former  suit.     If  a  suit  is  brought  to  procure  the  entry  of 

»  Bernhard  v.   City  of  Hoboken,  27  St.  Romes  v.  C.  0.  &  N.   Co.,  24  La. 

N.  J.  L.  412.  Ann.  331;  Glass  v.  Wheeliss,  24  La. 

"  Roberts  v.  Robeson,  27  Ind.  454.  Ann.  397;  Henry  v.  Davis,  13  W.  Va. 

^  King  V.  Chase,  15  N.  H.  9;  41  Am.  230;  Crum  v.  Boss,  7  Rep.  107. 

Dee.  675;  Taylor  v.  Dustin,  43  N.  H.  ^  Garwood  v.  Garwood,  29  Cal.  521; 

493.  King  v.  Chase,  15  N.   H.  16;  41  Am. 

*  Hunter  v.  Davis,  19  Ga.  413;  De  Dec.  675. 


465  THE    JUDGMENT    AS    AN    ESTOrPEL.  §  257 

satisfaction  of  a  mortgage,  and  the  judgment  is,  tliat  the 
mortgage  is  not  satisfied  because  a  specified  amount  re- 
mains unpaid,  this  judgment  is,  in  subsequent  contro- 
versies between  the  parties,  conclusive  that  the  mortgage 
was  not  paid,  but  the  amount  due  is  still  unsettled,  because 
it  was  not  in  issue  in  a  former  suit,"^  A  decree  setting 
aside  a  deed  does  not  affect  any  title  held  by  defendant, 
and  not  deraigned  through  such  deed.'^  An  estoppel  ex- 
tends beyond  what  aj)pears  on  the  face  of  the  judgment  to 
every  allegation  which,  having  been  made  on  the  one 
side  and  denied  on  the  other,  was  at  issue  and  determined 
in  the  course  of  the  proceedings.  It  not  only  establishes 
the  case  of  the  plaintiff,  but  disproves  or  negatives  that  of 
the  defendant.^  The  record  of  a  former  recovery  is  com- 
petent evidence  in  a  second  action  "  when  the  point  in 
issue  is  the  same  in  both,  or  when  some  question  raised 
and  to  be  passed  upon  in  the  last  has  already  been  deter- 
mined in  the  first."  *  "  It  is  not  the  object  of  the  suit, 
the  recovery,  or  fruits  of  the  litigation  alone,  that  consti- 
tutes the  estoppel,  but  the  facts  put  in  issue  and  found, 
upon  which  the  recovery  is  based,"  —  facts  in  issue  as  dis- 
tinguished from  the  evidence  in  controversy.^  It  is  not 
necessary  to  the  conclusiveness  of  the  former  judgment 
that  the  issue  should  have  been  taken  upon  the  precise 
point  which  it  is  proposed  to  controvert  in  the  collateral 
action.  It  is  sufficient  if  that  point  was  essential  to  the 
former  judgment.®  "Every  point  which  has  been  either 
expressly  or  by  necessary  implication  in  issue,  which  must 
necessarily  have  been  decided  in  order  to  support  the 
judgment  or  decree,  is  concluded."^  "It  is  allowable  to 
reason  back  from  a  judgment  to  the  basis  on  which  it 

1  Campbell  v.    Consalus,   25   N.  Y.  Gardner,  4.S  Cal.  306;  Rogers  v.   Hig- 

613.  gins,  57   III.   244;   Chesapeake  Co.  v. 

'^  Beeson  v.  Comley,  19  Mich.  103.  Gettings,  37  Md.  276;  Shepardsoii  v. 

*  Stevens    v.    Hughes,    31    Pa.    St.  Cary,  '29  Wis.  34. 

381.  ^  Lee  v.  Kingsbury,  13  Tex.  68;  62 

*  Sage  V.  McAlpin,  11  Cush.  105.  Am.  Dec.  546. 

s  Caperton  v.  Schmidt,  26  Cal.  479;         '  Board  of  S.  v.  M.  P.  R.  R.  Co., 
85  Am.  Dec.  187.    See  also  Phelau  v.     24  Wis.  124. 
JUDG.  I.  — 30. 


§  258  THE    JUDGMENT    AS    AN    ESTOPPEL,  466 

stands,  upon  the  obvious  principle  that,  where  a  conclu- 
sion is  indisputable,  and  could  have  been  drawn  only  from 
certain  premises,  the  premises  are  equally  conclusive  and 
indisputable  with  the  conclusion.  But  such  an  inference 
must  be  inevitable,  or  it  cannot  be  drawn."  ^  For  as  we 
have  already  shown,  if  a  judgment  necessarily  determines 
a  particular  fact,  that  determination  is  conclusive,  and 
requires  the  same  fact  to  be  determined  in  the  same  way 
in  all  subsequent  actions  between  the  same  parties.  And 
a  fact  is  necessarily  determined  to  exist  or  not  to  exist,  if 
its  existence  or  non-existence  is  required  to  support  the 
judgment  rendered.^  Thus  if  a  town  plat  is  entitled  to 
record  only  when  properly  acknowledged,  an  order  direct- 
ing it  to  be  recorded  establishes  that  it  was  so  acknowl- 
edged;^ if  a  party  is  entitled  to  property  only  by  virtue  of 
its  devise  to  him,  a  decree  distributing  it  to  him  is  con- 
clusive of  the  devise  and  its  validity;*  a  judgment  upon  a 
note  against  the  defendants  as  partners  conclusively  estab- 
lishes their  partnership  at  the  time  when  the  note  was 
made.^  And  it  has  been  held  that  an  issue,  not  absolutely 
necessary  to  be  determined,  may  become  res  judicata  if 
presented  by  the  pleadings,  argued  by  counsel,  and  in 
fact  decided  by  the  court.^ 

§  258.  Confined  to  Matters  in  Issue  and  Decided.  —  No 
judgment  or  decree  is  evidence  in  relation  to  any  matter 
which  came  collaterally  in  question,  nor  to  any  matter 
incidentally  cognizable,  or  to  be  inferred  from  the  judg- 
ment only  by  argument  or  construction.'     An  estoppel 

1  Bnrlen  v.  Shannon,  99  Mass.  200;  *  Almy  v.  Daniels,  15  R.  I.  312. 

96  Am.  Dec.  733;  Lea  i;.  Lea,  99  Mass.  '  Kitson   v.    Farwell,    132   111.    327; 

493;  97  Am.  Dec.  772.  Lawrence  v.  Hunt,   10  Wend.  81;  25 

•■''Duncan    V.    Bancroft,    110    Mass.  Am.    Dec.    539;   Jackson  v.   VA^ood,   3 

267;   Davis  v.  Demming,    12  W.  Va.  Wend.  27;  Wood  r.  Jackson,  8  Wend. 

246';  Dorris  v.  Erwin,  101  Pa.  St.  239;  35;  22  Am.  Dec.  603;  Hopkins  r.  Lee, 

School  Dist.  V.   Stocker,  42  N.  J.  L.  6  Wheat.  109;  Lewis  and  Nelson^  Ap- 

115  peal,  67  Pa.  St.  165;  Howard  v.  Kim- 

*  Scott  V.  Des  Moines,  64  Iowa,  438.  ball,  65  Me.  308;  Hammer  v.  Pounds, 

*  Greenwood  v.  Murry,  26  Minn.  259.  57  Ala.  348;  Land  v.  Keirn,  52  Miss. 
6  Dutton  t'.  Woodman,  9  Cash.  255;  341;    Henry    v.    Davis,    13    W.    Va. 

57  Am.  Dec.  46.  230. 


.467  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  258 

cannot  be  created  by  mere  argument.  A  owned  a  saw- 
mill, and  A  and  B  owned  a  grist-mill,  both  of  which  were 
run  by  water  from  the  same  dam,  and  had  wheels  on  the 
same  level,  and  were  equally  affected  by  backwater  from 
the  mill  of  C,  situate  on  the  same  stream.  A  brought  an 
action  against  C  for  damages  occasioned  by  water  being 
backed  upon  his  saw-mill,  in  which  it  was  settled  that  C's 
dam  backed  the  water  so  as  to  injure  the  saw-mill.  A 
and  B  then  sued  for  damages  occasioned  to  their  grist- 
mill, and  upon  trial  it  was  found  that  C's  dam  did  not 
back  the  water  upon  the  grist-mill.  After  the  judgment 
in  favor  of  C,  A  commenced  a  second  action  against  C  for 
damages  to  the  saw-mill.  It  was  agreed  that,  upon  the 
facts  of  the  case,  there  ought  to  be  the  same  finding  in 
respect  to  both  the  saw-mill  and  the  grist-mill.  The  court 
held  that  the  former  adjudication  between  A  and  C  was 
upon  the  precise  question  now  in  controversy;  that  the 
judgment  in  the  case  concerning  the  grist-mill  was,  at 
most,  not  upon  the  same  point  involved  in  the  present 
suit,  but  upon  a  fact  which,  by  argument  only,  is  shown 
to  be  applicable  in  this  case;  that  this  is  not  one  adjudi- 
cation against  another,  but  only  an  adjudication  one  way, 
and  a  probable  argument  founded  on  another  adjudication 
of  a  distinct  question  the  other  way.  It  leaves  the  effect 
of  the  first  judgment  untouched.^  The  correctness  of  this 
decision  is  doubtful.  For  we  may  argue  from  a  judgment, 
and  if  the  argument  is  so  cogent  that  a  particular  con- 
clusion cannot  be  avoided  without  denying  effect  to  the 
judgment  or  denying  some  premises  essential  to  its  sup- 
port, then  the  judgment  supports  the  conclusion  beyond 
further  controversy.  If,  on  the  other  hand,  the  judgment 
merely  tends  to  show  that  the  existence  or  non-existence 
of  a  fact  is  highly  probable  or  highly  improbable,  it  is 
not  conclusive  respecting  such  existence.* 

1  Mersereau  V.  Pearsall,  ION.  Y.  108.  Conn.  417;  Koon  v.  Mallctt,  68  Iowa, 

2  Sewall  «.  Robbins,  139  Mass.  IGi;  205;  Shall  v.  Biscoe,  18  Ark.  142; 
McCravey  v.  Remson,  19  Ala.  4.30;  54  Lawrence  v.  Hunt,  10  Wend.  SO;  25 
Am.  Dec.  194;  Dickinson  v.  Hayes,  31  Am.   Dec.  539;   Wahle  v.  Wahle,  71 


§  259  THE    JUDGMENT    AS    AN    ESTOPPEL.  468 

During  the  trial  of  a  cause,  evidence  may  properly  be 
received  of  the  existence  or  non-existence  of  facts  which, 
though  they  bear  upon  an  issue  and  tend  to  show  on 
which  side  of  it  the  truth  is,  are  not,  though  conceded  to 
exist,  necessarily  conclusive.  It  is  this  class  of  facts  which 
the  courts  have  usually  intended  to  designate  by  the  terms 
"collateral,"  "incidental,"  or  "not  directly  in  issue,"  and 
therefore  as  not  being  proved  or  disproved  by  the  judg- 
ment, though  controverted  at  the  trial,  and  perhaps  passed 
upon  by  court  or  jury  and  exercising  a  controlling  effect 
over  the  verdict  and  judgment.  Still,  if  the  judgment  can 
be  correct,  whether  the  fact  in  question  exists  or  not,  it  is 
not  directly  in  ^issue,  and  therefore  does  not  become  res 
judicata} 

In  determining  what  has  been  decided,  and  what  has 
therefore  become  a  binding  adjudication,  the  actual  judg- 
ment of  the  court  must  be  consulted,  and,  so  far  as  it 
speaks,  must  be  allowed  to  control.  Its  clear  import  can- 
not be  modified  or  controlled  by  the  expressed  opinions 
of  the  judges  by  whom  it  was  pronounced,  nor  by  the 
reasons  urged  by  them  in  its  support.  In  ascertaining 
whether  a  particular  matter  has  become  res  judicata,  the 
reasoning  of  the  court  is  less  to  be  regarded  than  the 
judgment  itself,  and  the  premises  which  its  existence 
necessarily  affirms.^ 

§  259.  Identity  of  Evidence.  —  The  best  and  most  in- 
variable test  as  to  whether  a  former  judgment  is  a  bar  is 
to  inquire  whether  the  same  evidence  will  sustain  both 

111    570;  Hymes  v.  Estey,  116  K  Y.  Hubbard  i'.  Flynt,  5S  Miss.  266;  Houser 

501-  15' Am.  St.  Rep.  421;  Dry  den  u  v.  Ruffner,  18  VV.  Va.  244;  Gilbert  i>. 

St  Joseph  etc.  R.  R.  Co.,  23  Kan.  525;  Thompson,    9  Cash.    348;   Doonan   v. 

Trimble  v.  Fariss,  78  Ala.  260.  Glynn,    28    W.    Va.    715;   Beckwith 

1  Henry  v    Davis,  13   W.  Va.  230;  v.  Thompson,  18  W.  Va.  103;  Wood  v. 

Hymes   v.  Estey,   116   N.  Y.  501;  15  Jackson,  8  Wend.  9;  22  Am.  Dec.  603; 

Am.  St.  Rep.  421;  McKinney  v.  Cur-  Lentz  v.   Wallace,  17  Pa.  St.  412;  5o 

tis    60  Mich.  611;  Kidd  v.  Laird,   15  Am.  Dec.  569. 

Cal.   161;  76  Am.  Dec.  472;  Smith  v.         2  McDonough's   Succession,    24  La. 

Sherwood,  4  Conn.  276;  10  Am.  Dec.  Ann.  34;  Plicque  w.  Perret,  19  La.  318; 

143;  Cavanaugh  V.  Buehler,  120  Pa.  St.  Hill  v.  Bowman,  14  La.  445;  Buckner 

441;  Stannard  v.  Hubbell,   123  N.  Y.  v.  Calcote,  6  Cushman,  432. 
520;  Lorauce  v.  Piatt,  67   Miss.  183; 


469  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  259 

the  present  and  the  former  action.*  If  this  identity  of 
evidence  is  found,  it  will  make  no  difference  that  the 
form  of  the  two  actions  is  not  the  same.'^  Thus  a  judg- 
ment for  defendant  in  a  suit  for  wheat  cut  and  carried 
aw^ay  is  a  bar  to  an  acjion  of  trespass  quare  clausum  fregit 
for  cutting  and  carrying  away  the  same  wheat,  because 
the  estoppel  depends,  not  on  the  identity  of  the  action,  but 
on  the  identity  of  the  proofs.^  Whatever  be  the  form  of 
action,  the  issue  is  deemed  the  same  whenever  it  may  in 
both  actions  be  supported  by  substantially  the  same  evi- 
dence.* If  so  supported,  a  judgment  in  one  action  is  con- 
clusive upon  the  same  issue  in  any  other  suit,  though  the 
cause  of  action  is  different.'  But  where,  as  in  Missis- 
sippi, an  action  of  replevin  must  be  brought  within  one 
year,  but  an  action  in  trover  may  be  maintained  at  any 
time  within  two  years,  a  plaintiff,  defeated  in  an  action  of 
replevin  because  it  was  brought  after  one  year  from  the 
taking,  may  thereafter  sustain  trover  for  the  same  taking. 
In  both  cases  the  evidence  required  to  support  the  plain- 
tiff's cause  of  action,  though  in  most  respects  identical,  is 
not  entirely  so,  because  in  the  first  action  proof  of  taking 
within  a  year  is  indispensable,  while  in  the  second  action 
such  proof  is  entirely  immaterial.^  On  the  other  hand, 
if  different  proofs  are  required  to  sustain  two  actions, 
a  judgment  in  one  of  them  is  no  bar  to  the  other.  If  the 
evidence  in  a  second  suit  between  the  same  parties  is 
sufficient  to  entitle  j)laintifif  to  a  recovery,  his  right  can- 
not be  defeated  by  showing  any  judgment  against  him  in 

1  Kitchen  v.  Campbell,  3  Wils.  304;  *  Ramsey  v.   Herndon,    1    McLean, 

Clegg  V.  Dearden,  12  Q.  B.  576;  Crock-  450;     Martin     v.     Kennedy,     2     Bos. 

ettw.  Ronton,  Dud.  (Ga.)  254;  Hunter  &   P.    71;   Duncan  v.  Stokes,  47   Ga, 

V.  .Stewart,  31  L.  J.  Ch.  346;  Taylor  v.  595. 

Castle,  42  Cal.  371;  Cannon  v.  Brame,  ^  Johnson  v.  Smith,  8  Johns.  383. 

45  Ala.  262;  Percy  v.  Foote,  36  Conn.  *  Hitchin     v.     Campbell,     2    Black, 

102;  (Mayer  v.  Parker,  24  Neb.  (543;  8  827;    Outram    v.    Morewood,    3    East, 

Am'.   St.  Pv-ep.  227;  Dawley  v.  Brown,  346;    Birkhead    v.    Brown,    5    Sand. 

79  N.  Y.  390;  Riker  v.  Hooper,  35  Vt.  134. 

457;  82  Am.  Doc.  646;  Gates  v.  Gore-  *  Doty  v.  Brown,  4  N.  Y.  71;  53  Am. 

ham,   5  Vt.    317;   26   Am.    Dec.    303;  Dec.  350. 

Marsh  v.  Pier,  4  Rawle,  273;  26  Am.  ®  Johnson  v.  White,  13  Smedes  &  M. 

Dec.  131.  584. 


§  259  THE    JUDGMENT    AS    AN    ESTOPPEL.  470 

any  action  where  the  evidence  in  the  present  suit  could 
not,  if  offered,  have  altered  the  result/  Thus  a  judgment 
against  a  vendor  suing  for  purchase-money  before  it  is 
due,  or  against  the  payee  of  a  note,  in  an  action  against 
three,  when  the  note  was  only  the  note  of  two,  is  no  bar 
to  a  subsequent  suit  in  the  first-named  case  after  the 
money  is  due,  nor  in  the  second  case  upon  the  note  as 
the  note  of  two;  for  in  neither  of  these  cases  could  evi- 
dence amply  sufficient  to  maintain  the  second  action 
have  had  any  influence  in  the  first.^  For  the  same  reason 
judgment  for  defendant  in  an  action  on  a  note  as  a  con- 
tract to  pay  money  is  no  bar  to  a  suit  against  him  on  the 
same  note  as  a  contract  to  pay  money  in  foreign  billsJ'  Suit 
was  brought  on  a  promissory  note  alleged  to  be  lost,  and 
which  was  described  as  payable  on  demand,  with  interest 
from  date.  The  defendant  pleaded  a  former  judgment  in 
bar.  In  the  previous  suit  the  note  was  described  as  in 
this,  except  that  it  was  alleged  to  be  payable  one  day  after 
date.  It  was  held  that  as  the  issue  joined  in  the  former 
suit  would  not  have  permitted  plaintiff  to  recover  upon 
proof  of  a  note  payable  on  demand,  the  former  judgment 
was  not  a  bar.*  An  account  stated  operates  as  a  change 
of  the  original  indebtedness,  and  is  in  the  nature  of  a  new 
undertaking.  An  action  upon  it  is  not  founded  on  the 
original  items,  but  upon  a  balance  ascertained  by  the 
mutual  understanding  of  the  parties.^  Therefore  if  in  an 
action  on  a  contract  the  defendant  introduces  in  evidence 
a  judgment  roll  showing  that  plaintiff  had  previously  com- 
menced an  action,  setting  forth  the  same  contract,  and 
alleging  that  a  specified  sum  was  due  as  an  account  stated, 

'  Gordon  t).  State,  71  Ala.  315;  Cleary  Scriver  v.  Eckenrode,  87  Pa.    St.  213; 

V.  Folger,  84  Cal.  316;  IS  Am.  St.  Rep.  Whaley  v.  Stevens,  24  S.  C.  479. 

187;  Florida  S.  R'y  v.  Brown,  23  Fla.  ^  Kirkpatrick  v.    Stingley,   2   Cart. 

106;  Ireland!).  Emmersou,  93Ind.  1;  47  273;  N.  E.  Bank  v.  Lewis,  8  Pick.  113; 

Am.  Rep.  364;  Stringer  v.  Adams,  98  United  States  v.  Cushman,  2  Sum.  426; 

Ind.  5.39;  Ballon  v.  Billings,  136  Mass.  Lawrence  v.  Vernon,  3  Sum.  20, 

307;  Nichols  v.   Marsh,  61  Mich.  509;  ^  jo^eg  v.  Fales,  4  Mass.  255. 

Kirkpatrick  v.  McElroy,  41  N.  J.  Eq.  *  Jones  v.  Fales,  4  Mass.  255. 

539;  Marsh  v.   Masterson,   101   N.  Y.  *  Pattison  t).  Jones,  27  lud.  457. 
401;   Belden  v.    State,   103  N.  Y.  Ij 


471  THE    JUDGMENT   AS    AN    ESTOPPEL,  §  260 

in  which  action  defendant  prevailed,  this  recovery  is  no 
bar  to  the  present  suit.  In  deciding  this  j^oint  the  court 
said:  *' A  judgment  is  a  bar,  if  the  cause  of  action  be  the 
same,  though  the  form  be  different.  The  cause  is  the 
same  when  the  same  evidence  will  support  both  actions; 
or  rather,  the  judgment  in  the  former  action  will  be  a 
bar,  provided  the  evidence  necessary  to  sustain  the  judg- 
ment for  plaintiff  in  the  present  action  would  have  au- 
thorized a  judgment  for  him  in  the  former.  The  present 
action  would  have  been  sustained  upon  j^roof  of  a  contract 
and  the  performance  on  the  part  of  plaintiff,  and  non- 
payment by  the  defendants.  This  proof  would  not  have 
sustained  the  former  action.  Therefore  the  judgment  is 
not  a  bar."  * 

§  260.  Merits.  — The  estoppel  arising  from  a  judgment 
or  decree  is  not  odious  because  it  is  confined  to  those 
points  which  either  were  in  fact  litigated  and  determined 
between  the  parties  or  which  were  determined  in  the  ab- 
sence of  any  actual  contest,  but  not  until  after  a  full  legal 
opportunity  was  given  both  parties  to  make  such  contest 
as  they  might  deem  proper.  It  follows  from  this  that  no 
judgment  can  be  available  as  an  estoppel,  unless  it  is  a 
judgment  on  the  merits}  But  an  occasional  difficulty  may 
arise  in  deciding  what  is  a  judgment  on  the  merits  as 
the  term  is  generally  employed  by  judges  and  lawyers. 
To  create  such  a  judgment,  it  is  by  no  means  essential 
that  the  controversy  between  plaintiff  and  defendant  be 

»  Taylor  r.  Castle,  42  Cal.  371.  So  Mo.  .360;  Houston  v.  Mnsgrove,  35 
a  note  offered  in  evidence  in  an  action  Tex.  594;  Verhein  v.  Strickhein,  57 
on  an  account  stated,  and  rejected  be-  Mo.  326;  Mosby  v.  Wall,  23  Miss.  81; 
cause  not  admissible  in  that  form  of  55  Am.  Dec.  71;  Dixon  v.  Sinclair,  4 
action,  maybe  subsequently  recovered  Vt.  354;  24  Am.  Dec.  610;  Carson  v. 
upon  an  action  thereon  in  proper  form:  Clark,  1  Scam.  113;  25  Am.  Dec.  79; 
Lindell  v.  Leggett,  1  Mo.  432;  14  Am.  Gould  v.  Railroad,  91  U.  S.  526;  Pep- 
Dec.  298;  and  a  failure  to  recover  per  ?'.  Donnelly,  87  Ky.  259;  Detroit 
against  one  as  a  common  carrier  does  v.  HouL;hton,  42  Micii.  459.  Judg- 
not  shield  him  from  liability  as  aware-  mcnt  by  consent  for  defendant  after  a 
houseman:  Kronshage  v.  C,  M.,  &  St.  plea  in  abatement  has  been  sustained 
P.  R'y  Co.,  45  Wis.  500.  is  not  on  the  merits:  Jordan  r.  Siefert, 

2  Taylor  v.  Larkin,  12  Mo.   103;  49  126  Mass.  25. 
Am.  Dec.  119;   Bell  v.  Hoaglaud,  15 


§  260  THE    JUDGMENT    AS    AN    ESTOPPEL.  472 

determined  "on  the  merits,"  in  the  moral  or  abstract 
sense  of  those  words.  It  is  sufficient  that  the  status  of 
the  action  was  such  that  the  parties  might  have  had  their 
lawsuit  disposed  of  according  to  their  respective  rights, 
if  they  had  presented  all  their  evidence,  and  the  court 
had  properly  understood  the  facts  and  correctly  applied 
the  law.^  But  if  either  party  fails  to  present  all  his  proofs, 
or  improperly  manages  his  case,  or  afterward  discovers  ad- 
ditional evidence  in  his  behalf,  or  if  the  court  finds  con- 
trary to  the  evidence,  or  misapplies  the  law, — in  all  tliese 
cases  the  judgment,  until  corrected  or  vacated  in  some 
appropriate  manner,  is  as  conclusive  upon  the  parties 
as  though  it  had  settled  their  controversy  in  accordance 
with  the  principles  of  abstract  justice.  Frequent  in- 
stances occur  tending  to  convince  us  of  the  unwelcome 
truth  that  many  judgments  which  in  law  are  regarded  as 
being  "on  the  merits"  are  in  fact  repugnant  to  any  dis- 
position of  the  rights  of  the  parties  "on  the  merits,"  as 
those  words  are  employed  in  relation  to  the  ordinary 
affairs  of  men.  If  in  an  action  on  a  judgment  the  plea 
of  nul  tiel  record  is  interposed,  and  the  plaintiff  fails  ow- 
ing to  a  defect  in  the  certificate,  he  is  estopped  from 
afterward  asserting  the  judgment,  though  its  validity 
is  free  from  doubt.^  Assignees  of  a  bankrupt,  failing  in 
a  suit  because  they  cannot  prove  an  act  of  bankruptcy 
sufficiently  early,  cannot  afterward  maintain  an  action  for 
the  same  demand,  though  they  secure  evidence  for  want 
of  which  they  suffered  the  former  defeat.^  A  former  suit, 
in  which  the  defendant  recovered  on  the  erroneous  ground 
that  the  cause  of  action  had  not  then  accrued,  is  a  bar  to 
a  further  prosecution.^    A  plaintiff  sued  on  a  recognizance, 

>  Hughes  V.  United  States,  4  Wall.  Keene   v.  Clark,  5  Eob.   (N.   Y.)  38; 

232;  Lore  v.  Truman,  10  Ohio  St.  45;  Kenan  v.  Miller,  2  Kelly,  325;  Rogers 

Birch  V.  Funk,  2  Met.  544;  Johnson  v.  v.    Higgins,    57    111.    244;    Parker    v. 

"White,  13  Smedes  &  M.  584;  Agnew  Clift.  9  Lea,  524. 

V.  MeElroy,  10  Smedes  &  M.  552;  48  ^  Foltz  v.  Prouse,  15  111.  434. 

Am.  Dec.   772;  Brackett  v.   Hoitt,  20  »  Stafford   v.    Clark,    1    Car.    &    P. 

N.  H.  257;  Van  Vleet  v.  Olin,  1  Nev.  403. 

95;  Wilbur  v.  Gilmore,  21  Pick.  250;  *  Morgan  v.  Plumb,  9  Wend.  287. 


473  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  260 

"but  failed  in  his  suit  because  he  did  not  prove  that  the 
recognizance  had  been  filed  as  required  by  statute.  It 
was  held  that  the  judgment  precluded  him  from  after- 
ward alleging  or  proving  that  the  filing  existed  prior  to 
the  former  suit.^  Certain  justices,  having  jurisdiction  to 
act,  allowed  several  accounts,  without  giving  them  any- 
particular  consideration,  supposing  that  several  impor- 
tant matters  of  law  were  involved,  and  that  an  appeal  lay 
to  the  quarter  sessions.  But  it  w^as  decided  that  no  such 
appeal  could  be  taken.  The  justices,  after  the  decision, 
were  anxious  to  hear  the  matter  on  the  merits.  A  man- 
damus being  applied  for  to  compel  them  to  do  so.  Lord 
Denman,  C.  J.,  said:  "We  think  we  have  no  power  to 
issue  this  mandamus  to  the  justices  to  hear  and  decide 
upon  the  allowance  of  accounts,  they  having  already  done 
so,  though  under  a  mistaken  notion  that  an  appeal  lay  to 
the  sessions,  and  though  they  are  now  anxious  to  enter 
on  the  merits  of  the  case.  To  unravel  the  grounds  and 
motives  which  may  have  led  to  the  determination  of  a 
question  once  settled  by  the  jurisdiction  to  which  the  law 
has  referred  it  would  be  extremely  dangerous;  but  many 
authorities  prove  that  it  is  beyond  our  own  competency, 
and  there  is  none  to  the  opposite  effect."^ 

The  most  familiar  instances  of  judgments  not  on  the 
merits  are  those  entered  for  some  defect  in  the  pleadings, 
preventing  the  plaintiff  from  putting  in  evidence  his  cause 
of  action,^  or  in  favor  of  the  defendant  upon  some  tempo- 
rary defense  or  plea  in  abatement,^  or  because  the  action 
was  prematurely  brought,  either  before  the  debt  sued  upon 
became  due,  or  before  the  plaintiff  had  made  some  demand 
or  done  some  other  act  necessary  to  perfect  his  cause  of 
action.^ 

'  People  V.  Smith,  51  Barb.  360.  *  Atkins  v.  Anderson,  63  Iowa,  739; 

"  Regina  v.  Yorkshire,  1   Ad.  &  E.,  Garrett  v.  Greenwell,  92  jMo.  120. 

N.  S.,  625.  "  Roberts   v.    Norris,    67    Ind.    3S6; 

3  Docter  w.  Furch,  76  Wis.  153;  Rod-  Walbridge    v.     Shaw,    7    Cush.    560; 

man  v.   Michij^an    C.    Pi-.    R.   Co.,    59  Boyer  v.  Austin,  54  Iowa,  402;  Crosby 

Mich.    31)5;    Florida    S.   R.   R.   Co.   v.  v.    Baker,    6    Allen,    295;    Mortou   v. 

Brown,  23  fla.  104.  Sweetser,  12  Alien,  134. 


§  261  THE    JUDGMENT   AS    AN    ESTOPPEL.  474 

§  261.  Judgments  of  Nonsuit/  of  Non  Prosequitur,-  of 
Nolle  Prosequi/  of  Dismissal/  and  of  Discontinuance  °  are 

exceptions  to  the  general  rule  that  when  the  pleadings,  the 
court,  and  the  parties  are  such  as  to  permit  of  a  trial  on 
the  merits,  the  judgment  will  be  considered  as  final  and 
conclusive  of  all  matters  which  could  have  been  so  tried.* 
A  nonsuit  "is  but  like  the  blowing  out  of  a  candle,  which 
a  man  at  his  own  pleasure  may  light  again."'  Under  no 
circumstances  will  such  a  judgment  be  deemed  final, 
whether  entered  before  or  at  the  trial.*  That  such  judg- 
ment was  entered  by  the  court  upon  an  agreed  statement 
of  facts  will  not  give  it  any  force  as  an  estoppel.^  A  judg- 
ment of  nonsuit  was  entered  against  plaintiff  on  a  certain 
count  of  his  complaint  for  not  replying  to  a  special  plea 
within  the  time  required  by  the  court.  The  effect  of  the 
judgment  was  held  to  be  to  turn  plaintiff  out  of  court,  and 
to  place  him,  as  to  such  count,  as  though  it  had  never 
been  filed.^°    The  dismissal  of  a  claim  against  an  insolvent 

1  Baudin  v.  Roliff,  1  Martin,  N.  S.,  *  Harvey  v.  Large,  51  Barb.  222; 
165;  14  Am.  Doc.  181;  Daggett  v.  Audubon  v.  Excelsior  Ins.  Co.,  27 
Robins,  2  Blackf.  415;  21  Am.  Dec.  N.  Y.  216;  People  v.  Vilas,  36  N.  Y. 
752;  Lowry  v.  McMillan,  8  Pa.  St.  157;  459;  93  Am.  Dec.  520;  Baudin  v.  Roliff, 
49  Am.  Dec.  501;  Fleming  v.  Hawley,  1  Martin,  N.  S.,  165;  14  Am.  Dec.  81; 
65  Cal.  492;  Pendergrass  v.  York  Mfg.  Dana  v.  Gill,  1  J.  J.  Marsh.  242;  20 
Co.,  76  Me.  509;  Holmes  v.  Chicago  Am.  Dec.  255;  Harrison  v.  Wood,  2 
etc.  R.  R.  Co.,  94  111.  439;  Cheeriey  v.  Duer,  50;  Merchants'  Bank  Ass'n  v. 
Cooper,  14  Neb.  415;  Manhattan  L.  I.  Mariposa  Co.,  7  Robt.  225.  With  re- 
Co.  V.  Broughton,  109  U.  S.  121;  More-  spect  to  judgments  of  dismissal  other 
land  V.  Gardner,  109  Pa.  St.  116.  than  those  entered  by  agreement,  see 

2  Howes  V.  Austin,  35  111.  412.  Wheeler  v.  Ruckman,  51  N.  Y.  391; 

3  Lambert  y.  Sandford,  2  Blackf.  137;  Kelton  v.  Jacobs,  5  Baxt.  574;  Brown 
18  Am.  Dec.  149.  v.  Kirkbride,  19  Kau.  588;  Wanzer  v. 

*  Jones   V.    Graham,    36    Ark.    383;  Self,  80  Ohio  St.  378. 

Roberts   v.    Hamilton,  56   Iowa,  683;  '  March      on     Arbitraments,     215; 

Hebler  v.  Shipp,  78  Ky.  64;  Boyrg  v.  cited   in   Clapp   v.    Thomas,  5  Allen, 

Gerding,    33    La.    Ann.    1369;  Craver  158. 

V.  Christian,  34  Minn.  897;  Philpott  v.  «  Foster  v.  Wells,  4  Tex.  101;  Pillow- 
Brown,  16  Neb.  387;  Hughes?;.  Walker,  V.  Elliott,  25  Tex.  Supp.  322;  Taylor 
14  Or.  481;  Bigleyit.  Jones,  114  Pa.  St.  v.  Larkin,  12  Mo.  103;  49  Am.  Dec. 
610;  Fowlkes  v.  State,  14  Lea,  14;  119;  Greely  v.  Smith,  1  Wood.  &  M. 
Jackson  v.  Elliott,  49  Tex.  62;  Ben-  181. 
ware  v.  Pine  Valley,  53  Wis.  527.  ^  Homer   v.    Brown,    16   How.   354; 

^  Phelps  V.  Winona  etc.  R.  R.  Co.,  Bridge  i'.  Sumner,  1  Pick.  371;  Morgan 

37    Minn.  485;   5  Am.   St.  Rep.    867;  v.  Bliss,  2  Mass.  113;  Derby «.  Jacques, 

Gibson  v.  Gibson,  20  Pa.  St.  9;  Lord  1  Cliff.  425;  Knox  v.  Waldoborough,  5 

V.  Chadbourne,  42  Me.  429;   66  Am.  Me.  185. 

Dec.  290;  Muse  v.  Farmers'  Bank,  27  ^®  Howes  v.  Austin,  35  111.  396. 
Gratt.  252. 


475  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  261 

estate  for  want  of  proof  has  the  same  effect  in  Louisiana 
as  a  nonsuit,  and  will  not  support  the  plea  of  res  judicata} 
If,  upon  a  trial  before  a  justice  of  the  peace,  he  expresses 
an  opinion  against  the  plaintiff,  who  thereupon  withdraws 
his  suit  and  pays  the  costs,  this  is  but  a  dismissal  of  his 
suit,  not  affecting  any  future  action.^     Parol  evidence  will 
not  be  admitted  to  show  that  a  cause  was  tried  upon  the 
merits,  but  that  the  justice  entered  a  judgment  of  nonsuit 
because  he  supposed  he  could  not  enter  any  other.*     In 
New  York  it  is  the  duty  of  a  justice  of  the  peace  before 
whom  a  cause  has  been  tried  and  submitted  to  determine 
it.     He  cannot  evade  this  duty  by  entering  a  judgment  of 
nonsuit.     If  he  attempts  to  do  so,  his  judgment  may  be 
reversed  upon  appeal.*     The  prosecution  of  an  appeal  in 
such  a  case  seems  to  be  an  idle  ceremony,  because  the  de- 
fendant is  entitled  to  treat  the  judgment  as  a  final  adjudi- 
cation upon  the  merits.     "  If  the  cause  be  submitted  to 
the  justice,  and  he  take  time  to  make  up  his  judgment, 
the  plaintiff  cannot  then  voluntarily  submit  to  a  nonsuit. 
The  case  is  sub  judice  upon  the  merits,  and  must  be  disposed 
of  upon  the  merits;  and  I  apprehend  it  is  not  then  in  the 
power  of  the  justice  to  nonsuit  the  plaintiff.     His  deter- 
mination of  the  case  is  equivalent  to  a  verdict  of  a  jury 
and  a  judgment  thereon;  and  although  he  may  call  his 
judgment  a  judgment  of  nonsuit,  and  enter  it  accordingly, 
if  the  record  or  minutes  of  the  trial  show  that  it  was  ren- 
dered after  the  cause  was  submitted  to  him,  and  after  he 
took  time  to  deliberate,  and  not  at  the  trial,  it  will  be  con- 
sidered a  judgment  for  the  defendant,  and  will  be  a  bar 
to  any  subsequent  action."  ^     But  it  seems  to  be  well  es- 
tablished in  the  same  state  that  the  fact  that  the  cause 
w^as  submitted  for  judgment  must  appear  from  the  docket 
and  minutes  of  the  justice;  and  that  when  he  has  entered 

'  Allinet  v.  Creditors,  15  La.  Ann.  Hess    v.    Beekman,     11    Johns.    457; 

130.  Peters  v.  Diossy,  3  E.  D.  Sniitli,  115. 

■•*  Jones  V.  Walker,  5  Yerg.  428.  ^  Elwell  v.  McQueen,  10  \Vena.  522; 

»  Brintnall  v.  Foster,  7  Wend.  103.  Gillilaa  v.  Spratt,  8  Abb,  Fr.,  N.  S., 

♦  Young  V.  Hubbell,  3  Johns.  430;  15. 


§  261  THE    JUDGMENT   AS    AN    ESTOPPEL.  476 

a  judgment  of  nonsuit,  it  is  not  competent,  for  tlie  pur- 
pose of  showing  that  the  decision  was  upon  the  merits,  to 
put  him  upon  the  stand  as  a  witness,  and  have  him  state 
the  circumstances  preceding  the  entry  of  the  judgment. 
"It  would  be  dangerous  to  permit  an  inquiry  into  the 
evidence  and  proceedings  of  a  trial  before  the  justice  to 
show  that  the  kind  of  judgment  rendered  by  him  was  not 
such  as  he  ought  to  have  rendered,  and  to  give  effect  to  it 
as  it  should  have  been,  rather  than  as  it  is."  ^  A  judg- 
ment was  reversed  upon  appeal  to  the  supreme  court,  and 
the  cause  remanded  for  further  proceedings.  The  plain- 
tiff, afterward  becoming  nonsuit,  was  allowed  to  bring 
another  action,  on  the  ground  that  the  rule  in  reference 
to  nonsuits  was  not  altered  by  the  cases  having  been  in 
the  appellate  court.^  "A  dismissal  or  nonsuit  not  deter- 
mining the  rights  of  the  parties  cannot  support  the  plea 
of  res  adjudicata.  Nor  will  the  reasoning  and  opinion  of 
the  court  upon  the  subject,  on  the  evidence  adduced  be- 
fore it,  have  the  force  and  effect  of  a  thing  adjudged, 
unless  the  subject-matter  be  definitely  disposed  of  by  the 
judgment."^  "At  common  law  there  is  no  form  of  an 
entry  in  the  books  of  a  judgment  dismissing  an  action. 
Every  judgment  against  a  plaintiff  is  either  upon  a  retraxit, 
non  prosequitur,  nonsuit,  nolle  prosequi,  discontinuance,  or 
a  judgment  on  an  issue  found  by  jury  in  favor  of  defend- 
ant, or  upon  demurrer.  The  inducements  or  preliminary 
recitals  in  these  several  kinds  of  judgment  are  variant, 
but  the  conclusion  in  each  is  alwa;^s  the  same;  it  is  as 
follows:  'Therefore  it  is  considered  by  the  court  that 
plaintiff  take  nothing  by  his  writ,  and  that  the  defendant 
go  without  day,  and  recover  of  plaintiflp  his  costs.'  Of 
these  several  judgments,  none  but  a  retraxit  or  one  on  the 
merits  will  bar  subsequent  actions."*  In  some  of  the 
states,  judgments  of  dismissal  seem  to  be  entered  after 
hearing  and  determining  a  cause  on  its  merits,  and  are 

»  Brintnall  v.  Foster,  7  Wend.  104.  »  Fisk  v.  Parker,  14  La.  Ann.  491. 

2  Holland  v.  Hatch,  15  Ohio  St.  464.         *  Bond  v.  McNider,  3  Ired.  440. 


477  THE    JUDGMENT    AS    AN    ESTOPPEL.       §§  261  a,  262 

equivalent  to  a  general  judgment  in  favor  of  the  defend- 
ant. Where  this  practice  prevails,  if  a  judgment  of  dis- 
missal appears  to  have  been  given  after  the  trial  and 
submission  of  the  cause  on  the  merits,  it  is  res  judicata.^ 

§  261  a.  The  Defendant's  Motion  for  a  Nonsuit  is  a 
Waiver  of  his  right  to  have  judgment  upon  the  merits, 
and  also  of  his  right  to  litigate  new  matter  set  up  in  his 
answer,  and  upon  which  he  has  demanded  affirmative 
relief.  In  an  action  to  quiet  title,  the  court,  on  motion 
of  defendant,  ordered  a  nonsuit.  He  then  offered  to  prove 
the  new  matter  alleged  by  him,  but  the  court  refused  to 
hear  the  evidence.  This  refusal,  having  been  made  the 
ground  of  an  appeal,  was  sustained  by  the  appellate  court 
on  the  following  grounds:  "A  defendant,  conceiving  that 
the  plaintiff  has  failed  to  prove  his  case,  may  waive  a 
motion  for  a  nonsuit,  and  proceed  to  prove  his  own  case, 
and  have  judgment  on  the  merits.  But  if  he  move  for 
a  nonsuit,  and  the  nonsuit  be  granted,  he  cannot  proceed 
and  have  judgment  on  the  merits,  because,  by  reason  of 
the  nonsuit,  the  plaintiff  is  virtually  out  of  court.  A  non- 
suit granted  on  the  motion  of  the  defendant  is  equivalent, 
in  its  operation  on  the  action,  to  a  dismissal  with  the 
consent  of  the  defendant."^ 

§  262.  Retraxit  and  Dismissal  by  Agreement.  —  Re- 
cently the  supreme  court  of  California  considered  the 
effect  of  a  judgment  of  dismissal  entered  by  agreement. 
Such  a  judgment  was  compared  to  that  of  a  retraxit  at 
common  law,  and  the  court  were  of  the  opinion  that,  like 
a  retraxit,  "  such  a  dismissal,  when  had  by  such  consent, 
amounts  to  the  open  and  voluntary  renunciation  of  a  suit 
pending."  The  court  adopted  the  language  of  Chief  Jus- 
tice Robinson  of  Kentucky,  as  follows:  "It  has  frequently 
been  decided  by  this  court  that  the  legal  deduction  from 

^  Bestr.  Hoppie,  3  Col.  137;  Brothers     v.  Erwin,  33  La.  Ann.  615;  Amory  v, 
V.  Higgins,  5  J.  J.  Marsh.  658;  Granger     Amory,  26  Wis.  152. 
V.  Singleton,  32  La.  Ann.  898;  Bledsoe        *  Wood  v.  Ramond,  42  Cal.  644. 


§  262  THE    JUDGMENT    AS    AN    ESTOPPEL.  478 

a  judgment  dismissing  a  suit  'agreed'  is,  that  the  parties 
had,  by  their  agreement,  adjusted  the  subject-matter  of 
the  controversy  in  that  suit;  and  the  legal  effect  of  such  a 
judgment  is,  therefore,  that  it  will  operate  as  a  bar  to  any 
other  suit  between  the  same  parties,  on  the  identical 
cause  of  action  then  adjusted  by  the  parties,  and  merged 
in  the  judgment  therein  rendered  at  their  instance  and 
in  consequence  of  their  agreement."^  These  decisions 
are  not  intended  to  conflict  with  the  rules  universally 
understood  as  applying  to  voluntary  dismissals  in  the 
absence  of  an  agreement.  To  avoid  all  misapprehension 
on  this  subject,  the  court  in  California  said:  "We  are  not 
to  be  understood  as  holding  that  a  mere  dismissal  of  an 
action  by  the  plaintiff  under  the  statute,  and  without  any 
agreement  upon  his  part  to  do  so,  is  to  be  held  to  consti- 
tute a  bar  to  its  renewal,  nor  that  a  judgment  of  nonsuit, 
even  entered  by  consent,  would  have  that  effect,  but  only 
that  a  judgment  of  dismissal,  when  based  upon  and  entered 
in  pursuance  of  the  agreement  of  the  parties,  must  be  un- 
derstood, in  the  absence  of  anything  to  the  contrary  ex- 
pressed in  the  agreement,  and  contained  in  the  judgment 
itself,  to  amount  to  such  an  adjustment  of  the  merits  of 
the  controversy,  by  the  parties  themselves,  through  the 
judgment  of  the  court,  as  will  constitute  a  defense  to 
another  action  afterward  brought  upon  the  same  cause  of 
action."^  That  the  dismissal  of  an  action  by  agreement 
is  equivalent  in  its  effect  to  a  retraxit  is  now  generally 
conceded;^  and  a  retraxit  has  always  been  deemed  a  judg- 
ment on  the  merits  against  the  plaintiff,  estopping  him 
from  subsequently  maintaining  an  action  for  the  cause 
renounced  by  his  retraxit.^ 

^  Bank  of  Commonwealth  t?.  Hopkins,  This  effect  was  denied  to  a  judgment 

2  Dana,  395.    See  also  Jarboe  ii.  Smith,  of  "dismissed  agreed"  in  an  action  of 

10   B.   Men.  257;    52   Am.  Dec.  541;  ejectment:    Stockton  v.  Copelaud,   30 

Phillpotts?;.  Blaisdel,  lONev.  19;  Hoo-  W.  Va.  674. 

ver  V.  Mitchell,  25  Gratt.  387.    Contra,         *  Coffman  v.  Brown,  7  Smedes  &  M. 

Hoffman  v.  Porter,  2  Brock.  156.  125;    45  Am.  Dec.   299;  Lowry  v.  Mc- 

2  Merritt  v.  Campbell,  47  Cal.  542.  Millan,  8  Pa.  St.  157;  49  Am.  Dec.  501; 

3  Crossman  v.  Davis,  79  Cal.  603;  Cunningham  v.  Schley,  68  Ga.  105; 
United  States  v.  Parker,  120  U.  S.  89;  Harris  v.  Preston,  10  Ark.  201;  Craw- 
Wohlford  V.    Compton,   79   Va.   333.  ford  v.  Glass,  11  Ired.  118. 


479  THE    JUDGMENT    AS    AN    ESTOPPEL.       §§  263,  264 

§  263.  Judgments  not  on  Merits.  —  Mr.  Smith,  in  his 
Leading  Cases,  divides  those  judgments  which  are  not  a 
bar  to  another  action,  because  not  on  the  merits,  into  the 
following  classes:  — 

1.  Where  the  plaintiff  fails  for  want  of  jurisdiction  in 
the  court  to  hear  his  complaint  or  to  grant  him  relief; 

2.  Where  he  has  misconceived  his  action; 

3.  Where  he  has  not  brought  the  proper  parties  before 
the  court; 

4.  Where  the  decision  was  on  demurrer,  and  the  com- 
plaint in  the  second  suit  sets  forth  the  cause  of  action  in 
proper  form; 

5.  Where  the  first  suit  was  prematurely  brought; 

6.  Where  the  matter  in  the  first  suit  is  ruled  out  as  in- 
admissible under  the  pleadings.^ 

§  264.  Want  of  Jurisdiction.  —  There  can  be  no  doubt 
that  the  dismissal  of  an  action  for  want  of  jurisdiction  is 
not  a  judgment  on  the  merits,  and  cannot  prevent  the 
plaintiff  from  subsequently  prosecuting  his  action  in  any 
court  authorized  to  entertain  and  determine  it.^  Nor  can 
a  judgment  of  a  court  having  no  jurisdiction  to  enter  it 
create  an  estoppel  for  or  against  any  one,  whether  it  pur- 
ports to  be  on  the  merits  or  not.*  In  Massachusetts,  a 
widow  may  present  her  petition  to  the  probate  court  to 
have  her  homestead  set  off  from  the  rest  of  the  estate  of 
her  deceased  husband.  If,  however,  the  heirs  dispute 
her  claim,  the  court  is  ousted  of  all  further  jurisdiction  in 
the  matter,  and  the  issue  formed  between  her  and  the 
heirs  must  be  tried  in  some  other  court.  But  a  widow 
having  presented  her  petition,  and  the  heirs  having  filed 
their  opposition,  the  probate  court  proceeded  to  hear  the 

'  Smith's  Lead.  Cas.  673.  ^  Blin  v.   Campbell,   14  Johns.  432; 

«  Smith  V.   McNeil,    109  U.    S.    426;  Offutt  r.  Offutt,  2  Har.'&  G.  ITS;  Schin- 

Roberts   v.    Hamilton,   56    Iowa,    68H;  dell   v.   Smiiaii,    13   Md.  310;    State  v. 

Smith  V.  Adams,  24  Wend.  585;  Green  0<lell,   4  Bluckf.    156;    Comnmnwealtb 

V.  United  States,  18  Ct.  of  CI.  93;  Keo-  v.   Peters,    12  Met.  387;  Thompson  w. 

kuk  etc.  R'y  Co.  t;.  Douuell,  77  lovva,  State,  6  Neb.  102. 
221. 


§  265  THE    JUDGMENT    AS    AN    ESTOPPEL.  480 

matter  as  though  it  had  jurisdiction,  and  after  a  trial,  in 
which  all  the  parties  in  interest  participated,  entered  a 
decree  denying  the  petition,  on  the  ground  that  the  peti- 
tioner had  no  homestead  right.  In  proceedings  before  a 
court  of  competent  jurisdiction,  she  afterward  sought  to 
assert  her  claim  to  the  homestead.  It  was  opposed  on  the 
ground  that  by  the  decree  of  the  probate  court  her  rights 
had  been  terminated.  But  the  supreme  court,  in  consid- 
ering the  effect  of  the  decree,  said:  "It  is  then  further 
urged  that  if  this  be  so,  yet  it  is  not  competent  for  the 
tenant,  who  was  the  petitioner  to  the  probate  court,  to  set 
up  want  of  jurisdiction  in  reply  to  the  plea  in  bar  in  this 
suit,  even  if  it  might  have  availed  her  in  the  probate  court 
or  on  an  appeal.  But  we  think  this  an  erroneous  view  of 
the  matter,  and  that  these  judgments  of  the  probate  court 
are  to  be  treated  as  wholly  void.  They  would  have  been 
so  if  in  her  favor,  and  they  ought  to  have  no  more  effect 
having  been  against  her."  ^  While  a  court  may  have 
jurisdiction  of  the  parties  to  the  action,  and  for  certain 
purposes  or  to  a  certain  extent  may  be  authorized  to  de- 
termine some  of  the  issues  in  controversy,  yet  if  it  goes 
beyond  the  bounds  of  its  authority,  its  decision  as  to  these 
matters  not  within  its  jurisdiction  cannot  acquire  the 
force  of  res  judicata? 

§  265.  In  Misconceived  Actions.  —  The  second  subdi- 
vision includes  all  judgments  rendered  on  the  ground 
that  conceding  the  plaintiff  to  have  a  cause  of  action  upon 
which  he  is  entitled  to  a  remedy,  yet  he  is  not  entitled  to 
so  recover  under  the  remedy  or  form  of  action  which  he 
has  chosen.'  The  exception  which  takes  these  cases  out 
of  the  general  rules  in  relation  to  estoppel  is  a  very  im- 
portant one,  saving  the  plaintiff  from  the  loss  of  his  claim, 
through  any  error  of  judgment  on  the  part  of  his  attorney 
in  determining  what  form  of  action  is  best  suited  for  the 

1  Mercier  v.  Chace,  9  Allen,  242.  ^  Basom   v.    Taylor,   39   Mich.    682; 

« Houston  V.  Musgrove,  35  Tex.  Kittredge  v.  Holt,  58  N.  H.  191; 
594.  Charles  v.  Charles,  13  S.  C.  385. 


481  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  266 

enforcement  of  the  plaintiff's  rights.*  Wherever  the  adop- 
tion of  a  code  of  civil  procedure  has  obviated  the  neces- 
sit}^  of  choosing  between  different  forms  of  action,  the 
number  of  cases  in  which  plaintiffs  will  be  obliged  to  in- 
voke the  protection  of  this  exception  will  be  much  less 
than  if  the  common-law  rules  were  still  in  force.  If,  by 
mistake,  plaintiff  brings  trespass  instead  of  trover,  and 
judgment  is  given  against  him  o?i  that  account,  the  de- 
fendant cannot  successfully  assert  it  as  a  bar  to  a  subse- 
quent action  of  trover.'^  If  a  defendant,  in  an  action 
against  him  on  a  promissory  note,  obtains  judgment  on  a 
plea  of  infancy,  the  note  being  given  by  him  for  a  chattel 
which  he  had  obtained  through  fraud,  and  had  refused  to 
deliver  to  the  owner  on  demand,  an  action  in  tort  may 
still  be  maintained  for  the  conversion  of  the  chattel.^  A 
plaintiff  who,  bringing  an  action  of  replevin  for  a  sum  of 
money,  is  defeated  in  that  action  because  it  lies  to  recover 
only  things  existing  in  specie,  is  not  estopped  by  the  judg- 
ment against  him  from  prosecuting  a  subsequent  action 
as  upon  the  contract  for  the  same  sum  of  money.  The 
former  judgment  is  conclusive  that  the  defendant  did  not 
have  the  specific  money;  but  it  does  not  determine  whether 
he  is  liable  for  money  had  and  received.* 

§  266.  Defect  of  Parties. — A  judgment  given  because  of 
a  misjoinder  or  non-joinder  of  parties  plaintiff  or  defend- 
ant, or  because  of  the  want  of  capacity  of  a  party  plaintiff 
or  defendant  to  sue  or  to  be  sued,  establishes  nothing  but 
such  defect  or  incapacity,  and  cannot  defeat  a  subsequent 
suit  in  which  the  vice  causing  the  former  judgment  does 
not  exist.'     If,  however,  though  there  was  a  defect  in  the 

»  Foster  v.  Wells,  4  Tex.  101;  Liver-  Richards,  36  Minn,   111;  Weinberger 

more  v.  Herschell,  3  Pick.  33;  Wyman  v.  Merchants'  Ins.  Co.,  41  La.  Ann.  .31; 

V.  Dorr,  3  Greenl.  185.  Tierney  v.  Abbott,  4G  Wis.  329;   St. 

2  Chitty's  Pleading,  198.  Homes  v.  Levee  Cotton  Press  Co.,  127 

8  Walker  V.  Davis,  1  Gray,  506.  U.   S.  614;  Robbins  v.   Wells,  1  Rob. 

*  Sager  v.  Blain,  44  N.  Y.  445.  (N.  Y.)  GG6;  Corl  v.  Riggs,  12  Mo.  430; 

*McCall«.  Jones,  72  Ala.  368;  Tif-  Wheeler  v.  Ruckman,  7  Rob.  (N.  Y.) 

fany  v.  Stewart,  60  Iowa,  207;  Smith  447;  35  How.  Pr.  350;  Whiter.  Gaines, 

V.  Auld,  31  Kan.  262;  Richardson  v.  29  La,  Ann.  769. 
JUDG.  I.  — 31 


§  267  THE    JUDGMENT    AS    AN    ESTOPPEL.  482 

parties,  the  action  was  tried  and  determined  on  the  merits, 
the  force  of  the  judgment  as  an  estoppel  is  not  lessened 
by  such  defect/ 

§  267.  Judgments  on  Demurrer.  —  A  judgment  on  de- 
murrer to  the  plaintiff's  complaint  is  conclusive  of  every- 
thing necessarily  determined  by  it.  If  the  court  decides 
that  plaintiff  has  not  stated  facts  sufficient  to  constitute 
a  cause  of  action,  or  that  his  complaint  is  otherwise  liable 
to  any  objection  urged  against  it,  such  decision  does  not 
extend  to  any  issue  not  before  the  court  on  the  hearing 
of  the  demurrer.  It  leaves  the  plaintiff  at  liberty  to 
present  his  complaint  in  another  action  so  corrected  in 
form  or  substance  as  to  be  no  longer  vulnerable  to  the 
attack  made  in  the  former  suit.^  But  a  judgment  upon 
demurrer  may  be  a  judgment  on  the  merits.  If  so,  its 
effect  is  as  conclusive  as  though  the  facts  set  forth  in 
the  complaint  were  admitted  by  the  parties  or  estab- 
lished by  evidence  submitted  to  the  court  or  jury.  No 
subsequent  action  can  be  maintained  by  the  plaintiff  if 
the  judgment  is  against  him,  on  the  same  facts  stated  in 
the  former  complaint.'''  If  any  court  errs  in  sustaining  a 
demurrer  and  entering  judgment  for  defendant  thereon, 
when  the  complaint  is  sufficient,  the  judgment  is  never- 
theless *'on  the  merits."  It  is  final  and  conclusive  until 
reversed  on  appeal.  Until  then  the  plaintiff  cannot  dis- 
regard it  and  maintain  another  action.  The  effect  of  a 
judgment  still  in  force  is  never  diminished  on  account  of 
any  mistake  of  law  on  which  it  is  founded.*  A  judgment 
in  favor  of  defendant  on  demurrer  to  an  answer  is  a  bar 

J  Gerardin  v.  Dean,  49  Tex.  243.  '  Clearwater  r.  Meredith,  1  Wall.  25; 

»  Robinson  v.   Howard,  5  Cal.  428;  Aurora  City  v.  West,  7  Wall.  82;  Now- 

Gerrish  v.  Pratt,  6  Minn.  5.3;  Oilman  Ian  v.  Geddes,  1  East,  634;  Bouchaud 

V.  Rives,   10    Pet.    298;   Nickelson   v.  r.  Dias,  3  Denio,  244;  Goodrich  r.  City, 

Ingram,  24  Tex.  630;  Birch  v.  Funk,  2  5  Wall.  573;  Perkins  v.  Moore,  16  Ala. 

Met.  (Ky.)  544;   Wells   v.   Moore,  49  17;    Gould  v.    Evansville   etc.  R.    R. 

Mo.  229;    Spicer  v.  United   States,  5  Co.,  91    U.  S.  526;   Felt  v.  Turnure, 

Nott&  H.  34;  Gould  v.  Evansville  etc.  48  Iowa,  397;  Nispel  v.  Laparle,  74111. 

R.  R.  Co.,  91    U.  S.  526;  Stowell  v.  306. 

Chamberlain,  60  N.  Y.  272;  Bounifield  *  Vallaadingham  v.  Ryan,    17    111. 

V.  Price,  1  Wyo.  Ter.  223.  25. 


483  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  267 

to  a  subsequent  suit  for  the  same  cause  of  action.^    If  a  de- 
murrer is  interposed  to  a  good  plea  in  bar,  it  will  estop  the 
plaintiff,  though  his  declaration  is  defective,  because  his 
demurrer  confesses  the  grounds  of^  defense.^     Although  an 
answer  has  been  filed,  yet  if  judgment  is  entered  against 
plaintiff  upon  the  pleadings  for  defects  in  his  complaint, 
this,  like  judgment  upon  demurrer,  is  no  bar  to  a  sub- 
sequent suit  in  which  the  cause  of  action  is  sufficiently 
set  forth.*     If  a  demurrer  is  overruled,  and  a  judgment 
thereupon  entered,  it  is  on  the  merits,  and  is  necessarily 
conclusive,  in  favor  of  the  party  against  whom  the   de- 
murrer was  interposed,  of  the  material  facts  confessed 
thereby,  and  that  they  entitle  him  to  the  relief  given. 
The  judgment  is  as  effective  as  an  estoppel  as  though  the 
facts  had  been  put  in  issue  and  established  by  a  verdict.* 
If,  on  the  other  hand,  a  demurrer  is  sustained  and  a  judg- 
ment entered  thereon,  this  is  a  decision  that  upon  the 
facts  stated  in  the  complaint  the  plaintiff  is  not  entitled 
to  recover.     To  that  extent  it  is  upon  the  merits,  and  he 
must  necessarily  fail  in  every  subsequent  action  based 
upon  the  same  facts  as  those  disclosed  by  his  pleading 
in  the  former  action;^  but  it  may  be  that  the  plaintiff 
had  a  good  cause  of  action,  and  failed  only  because  his 
pleading  did  not  allege  all  of  the  facts,  or  was  otherwise 
defective  in  form  or  substance.    Then  the  question  arises 
whether  he  may,  upon  a  proper  and  sufficient  pleading, 
recover  in  a  second  action.     There  are  cases  which  pro- 
ceed upon  the  theory  that  if  a  party,  at  the  time  of  com- 
mencing an  action,  has  a  good  cause  therefor,  he  must 
allege  it  in  his  pleading,  and  that  if  he  fails  to  do  so  and 

»  Wilson  V.  Ray,  24  Ind.  156.  lumbia,  19  Ct.  of  CI.  445;  Gray  v.  Gray; 

2  Lampen  v.  Kedgewin,  1  Mod.  207.  34  Ga.  499;  Carey  v.  Giles,  10  Ga.  9, 

3  Gerrish  v.  Pratt,  6  Minn.  53.  Parker  v.  Spencer,  Gl  Tex.  155;  Boinar 
♦Bissellv.  Spring  Valley,  124  U.  S.  v.    Parker,     68    Tex.    435;    Carlin    v. 

225;  Coffin  v.  Knott,  2  G.  Greene,  582;  Brackett,  .38  Miun.  307;  Los  Augeiea 

52  Am.  Dec.  537;  Johnson  v.  Pate,  90  v.  Melius,  58  Cal.  16;  Felt  v.  Turner, 

N.  C.  334.  48   Iowa,  397;   Woolley  v.  Louisville 

*  McLaughlin  «.  Doane,  40  Kan.  392;  Banking  Co.,  81   Ky.  527;  Francis  v. 

10  Am.  St.  Rep.  210;  Parkes  v.  Cliff,  Wood,  81  Ky.  16;  Dixon  v.  Zadex,  59 

9  Lea,  624;  Brown  v.  District  of  Co-  Tex.  529. 


§  268  THE    JUDGMENT    AS    AN    ESTOPPEL.  484 

a  demurrer  to  his  complaint  is  sustained  and  a  judgment 
entered  thereon,  he  cannot,  in  a  subsequent  action,  by  a 
complaint  not  subject  to  the  objections  interposed  in  the 
former  action,  recover  for  the  same  matters  for  which  he 
might  have  recovered  in  the  first  instance  had  he  prop- 
erly disclosed  them  in  his  pleading  at  that  time.^  But 
the  decisions  to  the  opposite  effect  are  very  numerous, 
and  establish,  almost  beyond  controversy,  that  a  judgment 
sustaining  a  demurrer  to  a  demurrable  complaint  cannot 
be  successfully  pleaded  in  bar  to  a  subsequent  action  in 
which  the  complaint  is  perfect,  though  the  plaintiff  might, 
had  he  chosen  to  do  so,  have  made  the  same  allegations  in 
the  first  action  as  in  the  second.^ 

§  268.  Premature  Suits.  — That  a  judgment  obtained 
for  the  reason  that  an  alleged  demand  is  not  yet  due  is 
no  bar  to  an  action  brought  on  the  same  demand  after  it 
has  fallen  due  is  a  universally  acknowledged  rule  appli- 
cable to  every  case  in  which  a  judgment  can  be  rendered 
against  any  one  because  he  has  undertaken  to  assert  a 
claim  which  has  yet  to  ripen  into  a  cause  of  action.^  A 
suit  upon  a  bond  before  condition  broken,  in  which  plain- 
tiff  fails  on  that  account  to  recover,  is  no  bar  to  any  ac- 
tion brought  against  the  same  defendant  after  condition 
broken."  When  a  vendee  brought  an  action  to  recover 
money  paid  by  him  as  purchase-money  for  a  tract  of  land, 
and  failed  because  he  had  not  yet  been  evicted,  he  was 
allowed  to  maintain  a  subsequent  action  upon  showing 

1  Lamb  v.  McConkey,  76  Iowa,  47;  Dayton,  10  Johns.  513;  10  Am.  Dec. 
Price  V.  Bonnifield,  2  Wyo.  Ter.  80;  286;  Keater  v.  Hock,  16  Iowa,  23; 
Smith  V.  Hornsby,  70  Ga.  552;  Ruegger  Terry  v.  Hammond,  47  Cal.  32;  Estep 
V  Indianapolis  etc.  R.  R.  Co.,  103  111.  v.  Larsh,  21  Ind.  190;  Los  Angeles  v. 
449  Melius,  59  Cal.  444. 

2  Moore  v.  Dunn,  41  Ohio  St.  62;  ^  ^j-app  v.  Eldridge,  33  Kan.  106; 
Bonnifield  v.  Price,  1  Wyo.  Ter.  240;  Tracy  v.  Merrill,  103  Mass.  280;  Dil- 
Pritchard  v.  Woodruff,  36  Ark.  19G;  linger  v.  Kelly,  84  Mo.  561;  Maxwell 
Grotenkemper  v.  Carver,  4  Lea,  375;  v.  Clarke,  139  Mass.  112;  Woocl  v. 
Halcombec.  Hey  wood  CountyComm'rs,  Faut,  55  Mich.  185;  Conn  v.  Bern- 
89  N  C.  346;  Lockett  v.  Lindsay,  1  heimer,  67  Miss.  498;  Brackett  v.  Peo- 
Idaho,  N.  S.,  324;  Detrick  v.  Sharrar,  pie,  115  111.  29;  Garrett  v.  Greenwell, 
95  Pa.  St.  521;  Rodman  v.  Michigan  92  Mo.  120. 

etc.  R.  R.  Co.,  59  Mich.  395;  Morrell         *  McFarlane  v.   Cushman,   21  Wia. 
V.   Morgan,   65   Cal.  575;   Skinner  v.     401. 


485  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  269 

his  eviction  since  the  former  siiit.^  If  a  suit  is  brought 
for  several  demands,  some  of  which  are  due  and  others  of 
which  are  not  due,  and  a  general  verdict  is  given  for  the 
plaintiff,  he  may  show  in  a  second  suit,  for  the  demands 
not  due  at  the  trial  of  the  first  suit,  that  though  pre- 
sented to  the  court  or  jury,  they  were  disallowed  because 
not  yet  due.^  If  from  the  record  in  the  first  suit  it 
appears  that  the  demands  were  prematurely  sued  upon, 
it  will  be  presumed  that  they  were  on  that  account  re- 
jected by  the  jury,  and  that  they  form  no  part  of  the 
judgment.  But  it  may  be  shown  that  the  demand,  though 
not  due,  was  not  objected  to  by  the  defendants,  and  was 
allowed  by  the  jury.^  Under  the  code  the  same  answer 
may  present  permanent  defenses  along  with  those  of  a 
temporary  nature.  Thus  to  an  action  upon  a  draft,  the 
defendant  may  answer,  —  "1.  That  the  draft  is  usurious; 
2.  That  it  is  paid;  and  3.  That  the  suit  is  premature, 
because  defendant  has  not  been  allowed  days  of  grace." 
If  this  action  should  proceed  to  trial,  resulting  in  a  find- 
ing in  favor  of  the  defendant  upon  each  of  these  issues, 
followed  by  a  general  judgment  in  his  favor,  such  judg- 
ment will  be  as  conclusive  in  relation  to  the  permanent 
defenses  of  payment  and  usury  as  upon  the  temporary 
defense  in  relation  to  the  days  of  grace.  If  the  plaintiff 
believes  that  the  findings  are  correct  as  to  the  tem- 
porary, and  incorrect  as  to  the  permanent,  defenses,  he 
must,  to  preserve  his  rights,  take  such  proceedings  as 
will  enable  him  to  overthrow  the  findings  upon  the  per- 
manent  defenses,  and  to  obtain  a  judgment  without  pre- 
judice to  a  subsequent  action.^ 

§  269.  Claims  not  Admissible.  —  Any  claim  of  the 
plaintiff  which  is  offered  by  him,  but  is  ruled  out  because 
not  admissible  under  his  pleadings,  is,  if  it  luere  not  ad- 

1  Hurst  V.  Means,  2  Sneed,  546.  155;  Kane   v.  Fisher,   2    Watts,   246; 

"  Kane  v.  Fisher,  2  Watts,  246;  Bull  Yaldon  v.  Hubburd,  Com.  Rep.  .321. 
V.  Hopkins',  7  Johns.  22.  *  Sheldon    v.    Edwards,    35    N.   Y. 

»  Grouse  v.   Mdler,   10  Serg.  &  R.  279. 


§  270  THE    JUDGMENT   AS    AN    ESTOPPEL.  486 

missible,  to  be  afterward  treated  as  though  it  had  not  been 
oflPered.^  Not  being  involved  in  the  issues,  it  cannot 
become  res  judicata,  unless,  without  objection  by  the 
defendant  or  through  error  of  the  court,  it  is  allowed 
and  becomes  a  part  of  the  judgment.  If,  however,  the 
court  erroneously  rejects  a  claim  as  inadmissible,  when 
it  should  be  admitted,  this  error  must  be  corrected  upon 
appeal,  and,  until  reversed,  the  judgment  is  conclusive 
against  the  rejected  claim.  On  the  other  hand,  though  a 
cause  of  action  or  of  defense  is  so  imperfectly  alleged  that 
the  court  ought  to  exclude  evidence  offered  to  support  it, 
yet  if  the  court  decides  otherwise,  and  receives  the  evi- 
dence when  offered,  and  thereafter  decides  it  to  be  insuf- 
ficient, or  to  be  overcome  by  countervailing  evidence,  the 
decision  is  conclusive,  and  cannot  be  avoided  on  the  ground 
that  the  court  erred  in  regarding  the  pleading  as  sufficient 
to  present  the  question  upon  which  the  evidence  was 
offered  and  received.^  Where  a  defendant  in  scire  facias, 
on  7iul  tiel  record  pleaded,  prevailed  because  the  scire  facias 
stated  the  judgment  to  be  against  James  H.  Green,  and 
the  record  offered  was  against  James  Green,  it  was  held 
that  this  was  no  bar  to  a  second  scire  facias?  So  an  ac- 
quittal upon  an  indictment  charging  the  burning  of  the 
barn  of  Josiah  T.  is  no  bar  to  a  prosecution  for  burning 
the  barn  of  Josias  T.* 

§  270.  Dismissal  of  a  Bill  in  Equity.  —  "The  dismissal 
of  a  bill  in  chancery  stands  nearly  on  the  same  footing  as 
a  judgment  at  law,  and  will  be  presumed  to  be  a  final  and 
conclusive  adjudication  on  the  merits,  whether  they  were 
or  w^ere  not  heard  and  determined,  unless  the  contrary  is 
apparent  on  the  face  of  the  pleadings  or  in  the  decree  of 
the  court."*     Only  two  cases  have  come  under  our  obser- 

1  Baker  v.  Rand,  13  Barb.  152;  Hard-  *  Commonwealth  v.  Mortimer,  2  Va. 

ing  V.  Hale,  2  Gray,  399;  De  Graaf  v.  Cas.  325. 

Wychoff,  118  N.  Y.  1;  Millard  v.  Mis-  ^  2  Smith's  Lead.  Cas.  667;  Wilcox 

souri  etc.  R.  R.  Co.,  86  N.  Y.  441.  v.  Balger,  6  Ohio,  406;  Taylor  v.  Yar- 

*  Chouteau  v.  Gibson,  76  Mo.  38.  borough,  13  Gratt.  183;  Scully  v.  Chi- 

'  Benton  v.  Duffy,  Cam.  &  N.  98.  cago  etc.  R.   R.    Co.,  46   Iowa,   528; 


487  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  270 

vation  in  whicb  the  decree  dismissing  a  bill  has  not  been 
considered  as  necessarily  final  and  conclusive/  while  the 
cases  are  numerous  sustaining  the  view  that  such  dis- 
missal is  a  bar  to  any  subsequent  bill,  unless  it  appears 
on  the  record  to  have  been  made  without  prejudice,  or 
otherwise  not  on  the  merits.^  If  in  fact  a  decree  is  ren- 
dered dismissing  a  bill  because  of  some  defect  in  the  plead- 
ings, or  for  want  of  jurisdiction,  or  because  complainant 
has  an  adequate  remedy  at  law,  or  on  any  other  ground 
not  involving  the  merits,  it  is  the  general  practice,  both 
in  England  and  in  the  United  States,  to  state  in  the  decree 
that  the  dismissal  is  without  prejudice;  and  the  omission 
of  these  words  is  an  error  which  will  be  corrected  upon 
appeal.^  If  a  decree  on  its  face  dismisses  a  bill  for 
want  of  equity,  its  effect  as  res  judicata  cannot  be  avoided 
by  showing  that  the  cause  was  not  heard,  but  that  the 
plaintiff  failed  to  appear,  and  the  judgment  was  not  on 
the  merits.*  A  dismissal  of  a  libel  for  divorce  in  Massa- 
chusetts stands  on  the  same  footing  as  the  dismissal  of  a 
bill  in  equity;  and,  unless  it  appears  on  its  face  to  be 
made  "without  prejudice,"  will  be  a  bar  to  another  libel 
for  the  same  cause.®  Where  the  plaintiff  did  not  in  his 
bill  show  any  interest  or  liability  requiring  the  aid  or 

Adams    v.    Cameron,    40    Mich.    506;  The  English  rule  seems  to  permit  the 

Cochran   v.    Couper,    2   Del.    Ch.    27;  complainant  to  show  that  the  dismis- 

Thompson  v.  Clay,  3  T.  B.  Mon.  359;  sal  of  his  bill  was  not  on  the  merits, 

16  Am.  Dec.  108;  Case  v.  Beauregard,  although  the  record  does  not  state  it 

101    U.   S.   688;    Strang   v.    Moog,  72  was    "without   prejudice":    Beere    v. 

Ala.  460;  McDonald  v.  Mobile  L.  I.,  Fleming,   13   I.   R.   C.  L.  506;   Long- 

65  Ala.  358;  Stickney  v.  Goudy,  132  mead  v.   JNlaple,   IS   Com.  B.,  N.  S., 

111.  213;  Tilleyi'.  Bridges,  105  111.  336;  255;    11  Jur.,  N.   S.,    177;    13  Week. 

Knowlton  v.   Hanbury,   117  111.   471;  Rep.  469;  12  L.  T.,  N.  S.,  143. 

Granger  t?.  SinLdetou,  32  La.  Ann.  894;  *  Durant    v.    Essex    Co.,    7    Wall. 

Parkes  v.  Clift,  9  Lea,  524;  Murdock  107. 

V.  Haskill,  7  Baxt.  22;  Blackinton  v.  *  Lyon  t-.  Perin  &  G.  Mfg.  Co.,  125 

Blackinton,  113  Mass.  231;  Pelton  v.  U.  S.  698;  Gove  v.  Lyford,  44  N.  H. 

Mott,  11  Vt.  148;  34  Am.  Dec.  678.  525;  Wilcox  v.  Badger,  6  Ohio,  400. 

'  Wright  V.  De  Klyne,  1  Pet.  C.  C.  Nor  can  the  efifect  of   the  decree  be 

199;  Chase's  Case,   1   Bland,  206;   17  avoided  by  showing  that  it  was  entered 

Am.  Dec.  277.  in  consideration  of  an  agreement  in 

-  Kelsey  v.  Murphy,  26  Pa.  St.  78;  writing  made  by  plaiutiQ",  and  which 

Perine  v.    Dunn,    4   Johns.    Ch.   142;  he   has   failed   to   perform:    Hicks   v. 

Neafie  v.  Neafie,  7  Johns.  Ch.   1;  11  Aylsworth,  13  R.  L  502. 

Am.  Dec.  380;  Foote  v.  Gibbs,  1  Gray,  *  Thurston   v.    Thurston,    99   Mass. 

412;  Parrish  v.  Ferris,  2  Black,  606,  39. 


§   270  THE    JUDGMENT    AS    AN    ESTOPPEL.  488 

interference  of  a  court  of  equity,  and  it  was  dismissed  on 
that  ground,  he  will  not  be  estopped  from  bringing  a  new 
bill  stating  matters  sufficient  to  authorize  the  action  of 
the  court.'  If  a  bill  filed  does  not  bring  before  the  court 
all  the  parties  necessary  for  a  proper  determination  of 
the  suit,  but  the  bill,  instead  of  being  dismissed  on  that 
account,  is  dismissed  for  want  of  equity,  this  is  a  bar  to 
any  future  bill  seeking  the  same  relief.'^  A  bill  to  redeem 
was  filed.  The  defendant  having  answered,  the  plaintiff 
failed  to  reply,  and,  without  the  knowledge  of  the  defend- 
ant, dismissed  the  suit.  The  defendant  afterward  had 
judgment  entered  in  his  favor  for  costs.  It  was  held,  the 
bill  being  dismissed  without  any  restriction,  that  this  was 
a  judgment  on  the  merits,  and  as  such  it  was  a  bar  to  any 
future  bill  for  the  same  cause.^  If  a  bill  by  a  vendor  seek- 
ing a  specific  performance  of  a  contract  to  purchase  is 
dismissed  on  account  of  some  defect  in  his  title,  the  doors 
of  courts  of  equity  are,  and  ought  to  be,  forever  closed 
upon  him,  though  he  may  afterward  be  able  to  make  a 
good  title.  If  the  court  intended  to  grant  the  complain- 
ant further  time,  it  should  have  continued  the  cause,  and 
thereby  given  him  an  opportunity  to  complete  his  title, 
or  should  have  dismissed  the  bill  without  prejudice. 
In  case  it  dismisses  the  bill  generally,  the  right  of  the 
vendor  to  compel  a  specific  performance  is  thereby  con- 
clusively and  perpetually  negatived.*  If  the  decree  declares 
the  bill  to  be  dismissed  without  prejudice,  it  leaves  the 
complainant  free  to  prosecute  another  suit  based  upon 
the  same  cause.^  A  section  of  the  law  of  the  United 
States  in  relation  to  patents  provides  that  where  two  pat- 
ents interfere,  any  person  interested  may  apply  in  equity, 
on  notice  to  the  adverse  parties,  and  the  court  may  adjudge 
and  declare  either  of  the  patents  void,  in  whole  or  in  part,  or 

1  Gist  V.  Davis,  2  Hill  Ch.  335;  29  =  Borrowscale  v.  Tuttle,  5  Allen,  377, 
Am.  Dec.  89;  Emory  v.  Keighan,  88  *  Hepburn  v.  Dunlop,  1  Wheat.  179. 
III.  516;  Gage  v.  Ewing,  114  111.  15.  *  Lang  v.  Waring,  25  Ala.  625;  60 
Contra,  Smith  v.  Hornsby,  70  Ga.  552.  Am.    Dec.    533;   Nevitt   v.   Bacon,   32 

2  Curts  V.  Trustees  of  Bardstown,  6  Miss.  212;  66  Am.  Dec.  609;  Magill  v. 
J.  J.  Marsh.  536.  Mercantile  T.  Co.,  81  Ky.  129. 


489  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  270  a 

inoperative  and  invalid  in  any  particular  part  of  the  United 
States.^  The  effect  of  a  decree  entered,  generally  dismiss- 
ing a  bill  brought  before  the  court  under  this  act,  is  not 
equivalent  to  a  judicial  declaration  that  the  patent  of  the 
complainant  is  either  inoperative  or  void.  In  announ- 
cing this  conclusion,  the  court,  after  suggesting  that  the 
dismissal  may  have  been  ordered  because  the  plaintiff  did 
not  show  that  defendant  violated  his  rights,  or  because 
the  defendant  may  have  shown  a  license  from  the  plain- 
tifiP,  said:  "A  judgment  or  decree  under  this  statute  cannot 
be  accepted  as  determining  that  point,  unless  it  be  direct 
and  affirmative  in  terms,  and  in  the  words  of  the  statute. 
The  court  must  adjudge  the  patent  void  in  v/hole  or  in 
part,  or  inoperative  and  invalid  in  some  particular  part 
of  the  United  States.  Had  the  decree  asserted  the  inter- 
ference of  the  patents,  and  declared  either  of  them  void, 
that  decree  would  have  been  conclusive.^ 

§  270  a.    A  Bill  may  be  Dismissed  before  the  Hearing, 

on  the  motion  of  the  plaintiff,  upon  payment  of  costs.^ 
Such  a  dismissal  has  no  higher  effect  as  res  judicata  than 
the  voluntary  dismissal  of  an  action  at  law.*  This  rule 
was  applied  where  the  cause  had  been  set  down  for  hear- 
ing, but  before  the  testimony  was  published  the  complain- 
ant dismissed  his  bill.®  In  a  case  before  Chancellor  Kent, 
the  decree  relied  upon  as  a  bar  was  one  dismissing  a 
former  bill,  because  no  one  appeared  on  the  part  of  the 
complainant  at  the  hearing.  The  chancellor  said:  "The 
merits  of  the  former  cause  were  never  discussed,  and  no 
opinion  of  the  court  has  ever  been  expressed  upon  them. 
It  is,  therefore,  not  a  case  within  the  rule  rendering  a 
decree  a  bar  to  a  new  suit.     The  ground  of  this  defense 

>  Patent  Act,  1S3G,  sec.  ]6;  5  U.  S.  meath,  1  Beat.  174;  Knox  v.  Brown,  2 

Stats,  at  Large,  123.  Brown  Ch.  185. 

*  Tyler -y.  Hyde,  2  Blatchf.  308.  *  VValden    v.  Bodloy,   14    Pet.   IGO; 

*  Cummins  v.  Bennett,  8  Paige,  79;  Conn.  v.  Penn.,  5  Wheat.  427;  Badger 
Simpson  v.  Brewster,  9  Paige,  245;  v.  Badger,  1  Cliff.  241;  Butchers' S.  & 
Carrington  v.  Holly,  1  Dick.  280;  Cur-  M.  Ass'n  v.  Boston,  137  Mass.  ISo; 
tis  V  Lloyd  4  Mylne  &  C.  194;  Lock  Jourolmon  v.  Massengill,  86  Tenn.  81. 
V.  Nash,  2  iladd.  389;  White  v.  Weat-  "  Badger  v.  Badger,  1  Cliff.  241. 


§  271  THE    JUDGMENT   AS    AN    ESTOPPEL.  490 

by  plea  is,  that  the  matter  has  already  been  decided,  and 
there  has  been  no  decision  of  the  matter."^  But  this 
decision  has  since  been  overruled,  on  the  ground  "that 
as  the  bill  was  dismissed  after  publication  had  passed,  it 
was  the  same  thing,  in  legal  effect,  as  though  the  cause  had 
been  brought  to  a  hearing  on  the  pleading  and  proofs."^ 
The  opinion  of  the  chancellor  thus  overruled  was  doubt- 
less correct,  and  is  supported  by  the  weight  of  authority.' 
If  the  defendant  at  any  time  procures  the  dismissal  of 
the  bill  for  want  of  prosecution,  this  is  not  a  judgment 
on  the  merits,  and  therefore  not  res  judicata.*  In  fact,  the 
better  opinion  is,  that  a  decree  dismissing  a  bill  is  conclu- 
sive only  when  it  is,  or  from  the  language  in  which  it  is 
expressed  or  the  circumstances  of  its  entry  must  be  pre- 
sumed to  be,  on  the  merits.  After  the  cause  has  been  set 
down  for  final  hearing  it  has  been  held  that  the  com- 
plainant has  no  power  to  dismiss  it,  and  that  his  volun- 
tary dismissal  is  equivalent  to  a  judgment  on  the  merits, 
unless  the  chancellor  orders  it  to  be  without  prejudice;® 
but  this  is  not  universally  conceded.  In  some  of  the 
states  it  has  no  greater  force  as  res  judicata  than  a  judg- 
ment of  discontinuance  at  law.®  If  the  bill  is  defective, 
and  a  demurrer  is  sustained  thereto,  and  final  decree  en- 
tered therein,  this  will  not  preclude  complainant  from 
recovering  upon  a  subsequent  and  sufficient  bill.^ 

§  271.  Immaterial  Findings.  —  The  effect  of  every  judg- 
ment or  decree  as  an  estoppel  is  restricted  to  such  mat- 
ters as  might  have  been  litigated  under  the  pleadings.® 
Thus  if  plaintiif,  in  an  action  in  relation  to  real  estate, 
avers  no  title  beyond  his  own  life,  the  judgment  rendered 

1  Rosse  V.  Rust,  4  Johns.  Ch.  300.         Porter  v.  Vaughn,  26  Vt.  624;  Curtis  v. 

2  Ogsbury   v.    La   Farge,    2    N.    Y.     Lloyd,  4  Myliie  &  C.  194. 

114;  citing  Byrne  v.  Frere,  2  Molloy,  *  Edgar  v.  Buck,  65  Mich.  356;  Phil- 

157.  lips  V.  V^^ormley,  58  Miss.  398. 

3  Baird  v.  Bardwell,  60  Miss.  164;  '^Kemptonv.'Burgess,  136  Mass.  192. 
Loudenback  v.  Collins,  4  Ohio  St.  251;  ^  Gage  v.  Ewing,  114  II .  15;  Emory 
Porter?;.  Vaughn,  26  Vt.  624;  Curtis z;.  v.  Koighan,  88  111.  516. 

Lloyd,  4  Mylne  &  C.  194.  «  Town   v.   Lamphere,    34   Vt.   365; 

*  Baird  v.  Bardwell,  60  Miss.  164;  Duncan  v.  Holcomh,  26  Ind.  378;  Bur- 
Loudenback  v.  Collins,  4  Ohio  St.  251;     dick  v.  Post,  12  Barb.  168. 


491  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  271 

in  his  favor  is  not  conclusive  as  to  any  greater  title  than 
he  put  in  issue.*  The  agreement  of  the  litigants  that 
matters  not  in  issue  may  be  given  in  evidence,  and  may 
be  determined  by  the  verdict  of  the  jury,  will  not  enlarge 
the  effect  of  the  judgment  as  an  estoppel.'^  Nor  can  evi- 
dence be  admitted  "to  show  a  prior  or  contemporaneous 
parol  agreement  between  the  parties,  the  effect  of  which 
would  be  to  materially  vary  the  terms  of  the  decree  and 
change  the  rights  of  the  parties  thereunder."  A  divorced 
husband  cannot,  in  a  proceeding  by  his  former  wife  to 
obtain  an  allowance  for  the  support  of  their  child,  show 
that  the  decree  of  divorce  was  entered  in  pursuance  of  a 
parol  agreement,  by  the  terms  of  which  she  was  to  pro- 
vide for  the  child.* 

The  rule  that  no  judgment  or  decree  is  conclusive  of 
anything  not  required  to  support  it  is  not  a  mere  rule  of 
construction  employed  in  giving  effect  to  an  adjudication, 
where  the  record  fails  to  disclose  what  findings  were 
made.  It  is  an  unyielding  restriction  of  the  powers  of 
the  parties,  of  the  court,  and  of  the  jury.  If  the  language 
of  a  decree  is  general,  it  will  be  restrained  to  the  issues 
made  in  the  case,  and  to  the  subject-matter  under  con- 
sideration by  the  court."  But  if  "a  decree,  in  express 
terms,  purports  to  affirm  a  particular  fact  or  rule  of  law, 
yet  if  such  fact  or  rule  of  law  was  immaterial  to  the  issue, 
and  the  controversy  did  not  turn  upon  it,  the  decree  will 
not  conclude  the  parties  in  reference  thereto."^  The  dec- 
laration, in  a  decree,  of  the  character  of  the  title  of  one  of 
the  parties,  when  the  consideration  of  such  character  is 
foreign  to  the  case  and  unnecessary  to  its  disposition,  has 
no  force  upon  the  parties  or  privies,  nor  upon  any  one 
else,  as  an  adjudication  of  title.'     A  special  finding  of  a 

'  Bradford  v.  Bradford,  5  Conn.  127.  '  Woodgate   v.   Fleet    44  N.  Y     1 ; 

»  Campbell   v.   Consalus,    25  N.   Y.  People  v.   .Tohnso.i     38   N.   Y.    63:   5 

613;  Wolfe  v.  Washburn,  6  Cow.  262;  Trans    App.    299;    97  Am.  Dec    770; 

Guest ,;.  Warner,  9  Ex.  379.  Hotchk.ss  v.  Nichols   3  Day,  1 38;  Coit 

3  Wilson  V.  Wilson,  45  Cal.  399.  v.  Tracy,  8  Conn.  268;  20  Am.  Dec. 

*  Boavillain  v.  Bourg,   16  La.  Ann.  110 

ggg  t-  Fulton  V.  Haulow,  20  Cal.  450. 


§  272  THE    JUDGMENT    AS    AN    ESTOPPEL.  492 

court  or  a  verdict  of  a  jury  not  confirmed  by  any  judg- 
ment of  the  court,  nor  involved  in  any  general  verdict, 
cannot  be  relied  upon  on  a  trial  before  another  or  the 
same  jury,  in  the  same  or  another  suit,  as  proof  of  the 
facts  so  found.  It  is  only  when  such  special  finding  has 
become  the  basis  of  a  judgment  that  the  matters  affirmed 
or  denied  by  it  are  res  adjudicata.^  No  record  is  conclu- 
sive as  to  the  truth  of  any  immaterial  allegations  contained 
in  the  pleadings.  Thus  in  an  action  of  debt  on  a  bond, 
it  may  be  shown  that  the  bond  was  made  at  A,  though  in 
a  former  suit  it  was  described  as  being  made  at  B.  A 
conviction  for  felony,  upon  a  general  verdict,  is  never 
conclusive  that  the  offense  was  committed  on  the  day 
named  in  the  indictment;  for  time  was  not  of  the  essence 
of  the  offense.  And  this  rule  will  hold  good  in  relation 
to  all  facts  stated  in  the  pleadings  of  either  party,  whether 
denied  or  admitted  by  his  adversary,  if  the  existence  or 
non-existence  of  those  facts  could  have  no  effect  upon  the 
final  determination  of  the  rights  of  the  parties.^  The  New 
York  court  of  appeals  has,  however,  recently  determined 
that  the  acceptance  of  a  judgment  by  confession  for  cer- 
tain goods  "as  sold  and  delivered"  by  plaintiff  to  the  de- 
fendant is  conclusive  against  the  former  in  an  action 
against  the  husband  of  the  former  defendant  for  the  con- 
version  of  the  same  goods.^ 

Part  III. —OF  EVIDENCE  TO  ESTABLISH  OR  REBUT  THE  PRE- 
SUMPTION   OF  RES   JUDICATA. 

§  272.  Whether  Matter  in  Issue  can  be  Shown  to  have 
been  Omitted.  —  We  have  shown  that  the  rule  excluding 
from  the  conclusive  effect  of  a  final  adjudication  all  of 
those  matters  which  were  not  material  to  the  decision  of 
the  controversy  made  by  the  pleadings  is  an  inflexible  rule. 

>  Hawks  V.  Truesdell,  99  Mass.  557;  Bohn,  41  Minn,  235;  Lorillardt;.  Clyde, 

Yeates  v.  Briggs,  05  111.  79;  Bayliss  v.  99  N.  Y.  196. 

Deford,  73  Iowa,  495;  Wilson  V.  Stripe,  ^2   Phillipps's   Evidence,   4th   Am. 

4  G.  Greene,   551;  01  Am.  Dec.   138;  ed.,  2. 

Auld  V.  Smith,  23  Kan.  65;  Mitchell  ^  yigi^    v.    Bland,    21    Alb.    L.   J. 

V.  Insley,    33  Kan.   654;  Woolsey   v.  511. 


493  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  272 

It  seems  that  there  ought  to  be  a  rule  the  converse  of 
this,  and  equally  inflexible,  to  the  effect  that  there  shall 
be  included  in  the  conclusive  effect  of  every  final  adju- 
dication every  matter  material  to  the  disposition  of  the 
controversy  as  made  by  the  pleadings,  when  the  cause 
is  submitted  for  decision;  and  such,  probably,  is  the 
generally  recognized  rule  at  the  present  day.  But  it  is 
opposed  by  decisions  which  permit  either  the  plaintiff  or 
the  defendant,  in  certain  cases,  to  show  that  a  matter 
asserted  as  a  claim  or  as  a  defense  by  his  pleading  was 
not  attempted  to  be  asserted  by  him  at  the  trial.  Thus 
it  has  been  said  that  "  if  a  party  attempt,  on  the  trial  of 
his  action,  to  prove  a  demand  against  the  defendant,  and 
fail,  he  cannot  set  it  up  again  on  a  second  action;  but  if 
he  can  clearly  show  that  he  omitted  to  give  any  evidence 
of  his  demand  in  the  action,  he  is  not  concluded  from 
doing  so  afterward."  ^  In  the  case  from  which  this  quo- 
tation is  made,  a  plaintiff,  having  two  demands,  clearly 
distinct,  sued  upon  both,  and  obtained  a  default.  In 
executing  the  writ  of  inquiry,  he  gave  evidence  upon  but 
one  of  his  demands,  and  recovered  judgment  accordingly. 
In  rendering  a  decision  permitting  a  second  action  to  be 
maintained  for  the  demand  not  allowed  in  the  first.  Lord 
Kenyon  said:  "In  truth,  this  is  a  question  of  great  deli- 
cacy. We  must  take  care  not  to  tempt  persons  to  try 
experiments  in  one  action,  and  when  they  fail,  to  suffer 
them  to  bring  other  actions  for  the  same  demand.  The 
plaintiff  who  brings  a  second  action  ought  not  to  leave  it 
to  nice  investigation  to  see  whether  the  two  causes  of 
action  are  the  same.  He  ought  to  show,  beyond  all  con- 
troversy, that  the  second  is  a  different  cause  of  action  from 
the  first,  in  which  he  failed.  In  this  case  it  is  clearly 
shown  that  this  demand  was  not  inquired  into  in  the 
former  action."  ^     "  But  if  plaintiff,  having  several  causes 

1  Serldon  v.  Tutop,  6  Term  Rep.  G07;  "  Seddon   v.    Tutop,    6  Term    Rep. 

Thorpe  v.  Cooper,  5  Bing.  1K3;  Deacon  607;  Newell  v.  Carpenter,  118  Mass. 

V.  Great  Western  R'y  Co. ,  6  U.  C.  C.  P.  41 1. 
241;  Hadley  v.  Green,  2  Tyrw.  390. 


§  272  THE    JUDGMENT    AS    AN    ESTOPPEL.  494 

of  action  against  the  defendant,  on  the  trial  offers  evi- 
dence on  these  causes,  and  fails  for  want  of  sufficient 
evidence  to  sustain  some  of  them,  he  cannot  bring  another 
action  for  those  causes  of  action  on  which  he  failed. 
Where  the  plaintiff  fails  to  recover  all  that  he  is  entitled 
to  for  want  of  some  proof  on  the  first  trial,  he  should 
move  to  set  aside  the  verdict  that  he  has  obtained."*  But 
so  far  as  the  plaintifif  is  concerned,  most  of  the  American 
cases  go  further.  They  declare  that  he  will  not  be  al- 
lowed to  bring  another  action,  because  in  the  first  he  gave 
no  evidence  of  his  demand;'^  that  he  will  not  be  permitted 
to  reserve,  or  from  any  cause  not  to  produce,  part  of  his 
evidence;  and  that  the  judgment  will  be  conclusive  as  to 
every  matter  which  he  could  have  proved  in  the  first  suit, 
and  which  was  not  proved  nor  withdrawn.^  The  defend- 
ant, however,  although  his  pleadings  present  a  claim, 
need  not  give  evidence  in  its  support,  unless  it  is  one 
which  he  is  compelled  to  present  and  litigate  in  that 
action.  Thus  where  a  defendant,  sued  for  the  price  of 
a  horse,  set  up  as  a  defense  a  breach  of  warranty  of 
soundness  of  the  horse,  and  failed  to  appear  at  the  trial, 
and  judgment  was  rendered  against  him,  he  was  allowed 
afterward  to  recover  of  the  plaintiff  for  the  same  breach 
of  warranty,  because  this  was  an  affirmative  cause  of 
action  which  defendant  had  a  right  to  litigate  as  a  plain- 
tiff. In  cases  like  this,  the  question  whether  the  claim 
was  presented  and  submitted  as  a  defense  may  be  settled 
by  proof  at  the  trial  of  the  second  action.  But  if  the 
claim  is  specifically  embraced  in  the  pleadings,  the  pre- 
sumption is,  that  it  was  presented  at  the  trial,  and  con- 
sidered in  the  rendition  of  the  judgment.*  If  a  court 
erroneously  rejects  evidence,  offered  to  prove  a  claim  or 
defense,  on  the  ground  that  it  is  inadmissible,  such  claim, 

»  Stafford    v.    Clark,    2    Bing.    377;  v.  Miller,  20  Tex.  579;  Tate's  Ex'r  v. 

Brockway   v.    Kinney,  2   Johns.  210;  Hunter,  3  Strob.  Eq.   136;  Barrett  v. 

McGuinty  v.  Herrick,  5  Wend.  240.  Failing,  8  Or.  152. 

2  Ramsey  u  Herndon,  1  McLean,  450.         *  Burwell  v.   Knight,  51  Barb.  267; 

s  Baker  v.  Rand,  13  Barb.  152;  Fisk  McDaniel  v.  Fox,  77  111.  343. 


495  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  272 

nevertheless,  on  rendition  of  the  judgment,  becomes  res 
judicata,  and  so  remains  until  the  judgment  is  vacated  or 
reversed  by  some  appropriate  proceeding.'  If  such  evi- 
dence was  offered  to  establish  a  cause  of  action  stated  in 
a  particular  count  of  the  plaintiff's  declaration,  and  the 
plaintiff,  failing  to  strike  out  or  withdraw  that  count, 
suffers  a  general  verdict  on  the  whole  cause,  the  judgment 
will  be  a  bar  to  another  action  on  the  claim  so  attempted 
to  be  established.^ 

A  judgment  of  a  court  possessing  competent  jurisdiction 
is  final,  not  only  in  reference  to  the  matters  actually  or 
formally  litigated,  but  as  to  all  other  matters  which  the 
parties  might  have  litigated  and  had  decided  in  the  cause.' 
A  party  cannot  try  his  action  in  parts.  The  judgment  is 
conclusive,  not  only  of  the  matters  contested,  but  as  to 
every  other  thing  within  the  knowledge  of  the  complain- 
ant which  might  have  been  set  up  as  a  ground  for  relief 
in  the  first  suit."  If  the  determination  of  a  question  is 
necessarily  involved  in  the  judgment,  it  is  immaterial 
whether  it  was  actually  litigated  or  not.^  Where  in  fact 
items  of  an  account  were  specifically  set  forth  in  the 
statement  of  the  causes  of  action  in  a  former  suit,  and, 
though  known  to  exist,  were  for  some  reason  overlooked 
and  not  considered,  they  cannot  in  law  be  the  ground  of 
a  second  action,^  nor  can  they  be  made  the  ground  of  such 
action,  though  they  were  omitted,  owing  to  an  error  of  the 
justice  before  whom  the  case  was  tried,  in  rendering  his 
judgment.'^  The  omission  of  a  court  to  award  relief  prayed 
for  is  ah  adjudication,  in  effect,  that  the  complainant  is 
not  entitled  thereto.^  Hence  if,  in  an  action  on  a  note 
and  mortgage,*judgment  is  rendered  on  the  note,  without 

»  Beall  V.  Pearre,  12  Md.  555;  Bur-         *  Hamilton   v.  Quimby,  46   111.   90; 

nett  V.  Smith,  4  Gray,  50;   Grant  v.  Shaffer  v.  Scudtly,  14  La.  Ann.  575. 
Button,  14  Johns.  377.  °  Barker  v.  Cleveland,  19  Mich.  230. 

2  Smith  V.  Whiting,  11  Mass.  445.         «  Keokuk    v.    Alexander,   21   Iowa, 

3  Bellineer  v.  Craigue,  31  Barb.  534;  377. 

Davis    V.    Tallcott,    12    N.    Y.     184;        ■  Town  v.  Smith,  14  Mich.  348, 
Marriott  v.  Hampton,  7   Term   Rep.         ^  Thompson    v.    McKay,    41     Cal. 
265;  Bruen  v.  Houe,  2  Barb.  596.  221. 


§  273  THE    JUDGMENT    AS    AN    ESTOPPEL.  496 

any  order  of  sale,  this  is  conclusive  that  the  plaintiff  has 
no  lien,  and  he  cannot  afterward  maintain  an  action  to 
foreclose  his  mortgage.^  From  the  decisions  cited  in  this 
section,  the  conclusion  is  irresistible  that  a  judgment  or 
decree  is  conclusive  upon  all  causes  of  actions  and  all 
matters  of  defense  presented  by  the  pleadings  and  not  with- 
drawn before  or  during  the  trial,  except,  —  1.  Where  the 
plaintiff  claims  upon  several  and  distinct  causes  of  action, 
in  which  case  he  may,  according  to  some  of  the  author- 
ities, maintain  a  second  action  upon  any  one  of  those 
causes  upon  which  he  can  show  that  he  offered  no  evi- 
dence at  the  trial  of  the  former  case;^  2.  Where  the  de- 
fendant pleads  a  matter  as  a  defense  which  he  might  have 
successfully  employed  as  a  cause  of  action  against  the 
plaintiff;  in  which  case  it  appears  that  the  right  to  such 
cause  of  action  is  not  lost  to  the  defendant,  unless  he  fol- 
lowed up  his  pleading  by  offering  evidence  upon  it  in  the 
former  suit.  With  the  possible  exceptions  here  stated,  a 
judgment  is  conclusive  upon  all  the  material  issues  made 
by  the  pleadings,  and  also  upon  every  material  allegation, 
whether  of  claim  or  of  defense,  which  the  part}'^  against 
whom  such  allegation  is  made  does  not  choose  to  contro- 
vert. 

§  273.  Evidence  to  Show  What  was  Decided.  —  A  few 
early  cases  proceeded  upon  the  theory  that  a  former  judg- 
ment would  be  received  as  evidence  in  a  second  action 
only  as  to  those  matters  which,  from  an  inspection  of  the 

'Johnson     v.     Murphy,     17     Tex.  ticular  claim  was  neither  presented  nor 

216.  considered:  Wood  v.  Corl,  4  Met.  203; 

■^  2  Smith's  Lead.  Cas.  669.  In  this  Southside  R.  R.  Co.  v.  Daniels,  20 
first  class  may  be  included  those  cases  Gratt.  3G6;  AUebaugh  v.  Coakley,  75 
in  which  several  counts  are  inserted  Va.  628;  Parks  v.  Moore,  13  Vt.  183; 
in  a  declaration,  and  the  general  issue  37  Am.  Dec.  589;  Cunningham  v. 
being  pleaded,  a  general  judgment  is  Foster,  49  Me.  68;  Merchants'  Bank 
entered  thereon.  Such  judgment  is  v.  Schixlenberg,  48  Mich.  102;  Paine  v. 
prima  facte  evidence  of  the  prior  ad-  Schenectady  I.  Co.,  12  R.  I.  440;  Con- 
judication  of  every  demand  which  verse  v.  Colton,  49  Pa.  St.  346;  Hun- 
might  have  been  litigated  under  the  gerford's  Appeal,  41  Conn.  322;  Dick- 
pleadings;  but  this  evidence  may  be  inson  v.  Hayes,  31  Conn.  423;  Sweet 
overcome  by  proving   that  some  par-  v.  Maupin,  65  Mo.  65. 


497  THE    JUDGMENT   AS    AN    ESTOPPEL.  §   273 

record,  could  be  sliown  to  have  been  settled  in  the  first.* 
But  it  happens  frequently,  and  perhaps  in  a  majority  of 
cases,  that  the  matters  litigated  between  the  parties  to  an 
action  cannot  be  ascertained  from  the  record.  It  is  now 
generally,  and  perhaps  universally^  conceded  that  parol 
evidence  may  be  received  for  the  purpose  of  showing 
wdiether  a  question  was  determined  in  a  former  suit;^ 
and  that  "the  estoppel  extends,  beyond  what  appears  on 
the  face  of  the  judgment,  to  every  allegation  which,  having 
been  made  on  one  side  and  denied  on  the  other,  was  at 
issue  and  determined  in  the  course  of  the  proceedings; 
and  that  while  there  exists  a  strong  presumption  that  the 
judgment  covers  every  matter  in  the  issues  and  appar- 
ently settled  by  the  judgment,  yet  that  this  presumption 
may  be  overcome  by  clear  proof  that  no  evidence  was 
given  as  to  that  fact  by  the  plaintiflF,  or  that  defendant 
failed  to  take  advantage  of  some  defense  which  he  might 
have  made  available."^  It  may  always  be  shown  by  evi- 
dence aliunde  that  any  matter  which  the  issue  was  broad 
enough  to  cover  arose  and  was  determined  in  the  prior 
suit.*  The  record  may  be  first  put  in  evidence,  and  then 
it  may  be  followed  by  such  parol  evidence  as  may  be 
necessary  to  give  it  proper  effect.^  If  the  record  in  an 
action  of  ejectment  does  not  show  on  what  grounds  the 

1  Smith  V.  Sherwood,  4   Conn.  276;  Gates  v.  Bennett,  33   Ark.  475;   San- 

10  Am.  Dee.  143;   Church  v.  Leaven-  derson  v.  Peabody,  5  N.  H.  116;  Haller 

worth,  4  Day,  281;  1  Esp.  43;  Manny  v.  Pine,  8   Blackf.   175;   44  Am.  Dec. 

V.  Harris,  2   Johns.  29;    3  Am.  Dec.  762;   Bridge  v.  Gray,  14  Pick.  55;   25 

386.  Am.  Dec.  .358;  Strauss  v.  Meertief,  64 

•■'  Taylor  v.  Dustin,  43   N.  H.  493;  Ala.  299;   38  Am.  Rep.  8;   Wilson  v. 

Kingr.  Chase,  15  N.  H.  9;  41  Am.  Dec.  Dean,  121  U.  S.  525;  Feudal!  v.  United 

675;    Foster   v.    Wells,    4    Tex.    101;  States,  14  Ct.  of  01.  247;  Foyet-.  Patch, 

Walker  v.  Chase,  53    Me.  258;  Wood  132   Mass.   105;   White  v.  Chase,  128 

V.   Jackson,  8  Wend.  9;    22  Am.  Dec.  Mass.  158. 

603;  Teal  v.  Terrell,  48  Tex.  491;  Estill  3  Clemens  v.  Clemens,  37  N.  Y.  59 

V.  Taul,  2  Yerg.  466;  24  Am.  Dec.  498;  *  Chamberlain    v.   Gaillard,   26   Ala, 

Young  V.  Black,  7  Crauch,  565;  Dris-  504;  Duuckel  v.  Wiles,  11  N.  Y.  420 

coll  V.  Damp.   16   Wis.   106;    Davis  v.  Harris  v.   Harris,  36   Barb.  88;  Law 

Brown,  94  U.  S.   423;  Vallandingham  rence  v.  Hunt,  10  Wend.  80;  25  Am 

V.  Rvan,  17  111.  2.");   Russell  v.  Place,  Dec.  539;  Gardner  v.  Buckbee,  3  Cow, 

94  U.  S.  606;  Hill  v.  Freeman,  7  Ga.  120;    15  Am.   Dec.  256;    Eastman 

211;    State    v.    Morton,    18    Mo.    53;  Cooper,   15    Pick.  276;    26   Am.   Dec. 

Brown  v.  King,  10  Mo.  56;  Anisden  v.  600. 

Dubuque  etc.  R.  R.  Co.,  32  Iowa,  2S8j  *  Briggs  v.  Wells,  12  Barb.  567. 

JUDG.  I.— 32 


§  274  THE    JUDGMENT    AS    AN    ESTOPPEL.  49S 

plaintiff  or  defendant  recovered,  it  may  be  explained  by 
showing  what  title  was  established  or  set  up  in  the  action.* 
And  for  the  purpose  of  ascertaining  what  was  determined 
in  a  former  action,  the  opinion  of  the  court ^  and  the  briefs 
of  counsel^  may  be  considered.  Judgment  on  the  merits 
against  the  master,  in  an  action  of  trespass  for  the  act  of 
his  servant,  is  a  bar  to  an  action  against  the  servant  for 
the  same  act,  though  such  judgment  was  not  rendered 
until  after  the  general  issue  was  pleaded  to  the  action 
against  the  servant;  and  parol  evidence  is  admissible  to 
show  that  the  same  matter  is  in  controversy  in  both  ac- 
tions.* An  entry  of  "dismisi^ed  at  costs  of  plaintiff,  being 
susceptible  of  a  double  construction,  i.  e.,  that  it  was  a 
judgment  for  defendant  on  the  merits,  or  a  judgment  of 
nonsuit  or  discontinuance,  may  be  explained  by  evidence 
of  the  justice  to  show  which  character  of  judgment  he  in- 
tended to  enter." ^  "When  a  number  of  issues  are  pre- 
sented, the  finding  in  any  one  of  which  will  warrant  the 
verdict  and  judgment,  it  is  competent  to  show  that  the 
finding  was  upon  one  rather  than  on  another  of  these 
different  issues.  Nor  does  the  subsequent  application  of 
the  verdict  to  a  single  count  by  the  court  preclude  this 
inquiry."  In  order  to  show  by  evidence  aliunde  that  a 
matter  is  res  judicata,  it  must  appear,  not  only  that  it  was 
properly  in  issue  in  the  former  trial,  but  also  that  the  ver- 
dict and  judgment  necessarily  involved  its  determination.* 

§  274.  Evidence  to  Rebut  Apparent  Estoppel.  —  If  it 
appears  prima  facie  that  a  question  has  been  adjudicated, 
it  may  be  proved  by  parol  testimony  that  such  question 
was  not  in  fact  decided  in  the  former  suit.^     Where  items 

1  Emery  v.  Fowler,  39  Me.  326;  63  «  Packet  Co.  v.  Sickles,  5  Wall.  580. 
Am.  Dec.  627.  'Johnson   v.    Smith,   15   East.  213; 

2  Legrand  v.  Rixey,  83  Va.  862;  Whittemore  v.  Whittemore,  2  N.  H. 
New  Orleans  etc.  R.  R.  Co.  v.  New  26;  Parker  ?».  Thompson,  3  Pick.  429; 
Orleans,  14  Fed.  Rep.  373;  Serong  v.  Phillips  v.  Berick,  16  Johns.  136;  8 
Grant,  2  Mackey,  218.  Am.   Dec.  299;  Wheeler  v.  Van  Hon- 

*  Greenlee  v.  Lowing,  35  Mich,  ten,  12  Johns.  311;  Coleman's  Appeal, 
63.  62  Pa.  St.  252;  Southside  R.  R.  Co.  v. 

*  Carr  v.  Woodleff,  6  Jones,  400.  Daniel,    20   Gratt.    363;    Spiadling  v. 

*  W.  A.  &  G.  S.  P.  Co.  V.  Sickles,  24  Conway,  51  Mo.  51;  Bottorff  v.  Wise, 
How.  333.  53  lud.  32. 


499  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  275 

could  have  been  proved  in  a  former  action,  the  presump- 
tion arises  that  they  were  proved,  but  it  may  be  rebutted 
aliunde.^  If  a  matter  was  pleaded  as  a  credit,  it  is  com- 
petent to  show  that  it  was  not  offered  as  a  credit  on  the 
trial,  and  that  the  court  in  deciding  the  case  expressly 
excluded  it  from  consideration.^  Parol  evidence  is  also 
admissible,  according  to  some  decisions,  to  prove  that  a 
former  action  in  a  justice's  court  was  not  tried  on  the 
merits,  but  was  nonsuited.*  In  an  action  for  goods  sold, 
the  plaintiff,  to  avoid  the  plea  of  res  judicata,  may  show 
that  the  previous  judgment  against  him  was  rendered  on 
the  ground  that  the  time  of  credit  given  on  the  goods  had 
not  expired.*  If  the  defendant  in  a  real  action  pleads  a 
former  recover^''  as  a  bar,  the  plaintiff  may  prove  that  he 
failed  in  his  suit  on  the  sole  ground  that  his  grantor  was 
disseised  at  the  time  of  conveying  title;  and  the  plaintiff 
may  thereupon  establish  his  title  under  a  subsequent  con- 
veyance from  such  grantor.^  Where  the  subject-matter 
has  "been  in  litigation  before,  the  evidence  that  the 
merits  were  not  passed  upon  ought  to  exclude  all  other 
hypotheses,'"^  but  when  the  evidence  clearly  shows  that  a 
former  judgment  was  not  on  the  merits,  its  force  as  res 
judicata  is  destroyed.'' 

§  275.  Record  not  to  be  Impng-ned.  —  It  is  important 
that  the  evidence  offered  to  explain  a  record  should  not 
contradict  it.  For  it  cannot  be  shown,  in  opposition  to 
the  record,  that  a  question  which  appears  by  it  to  have 
been  settled  was  not  in  fact  decided,^  nor  that,  while  a 
special  cause  of  action  was  in  issue,  a  different  matter  was 

1  Badger  V.  Titcomb,   15  Pick.  416;         «  pigk  j,,  ]\iji]er,  20  Tex.  579;  Graves 

26  Am.' Dec.   611;  Webster  v.  Lee,  5  v.  White,  13   Tex.   123;  Fox  v.   Hud- 

Mass.    33-t;    Golightly    v.    Jellicoe,    4  son,  20    Kan.  246;    Armstrong  v.   St. 

Term    Rep.   147;   Seddon  v.  Tutop,  6  Louis,  69  Mo.  309;  33  Am.  Rep.  499; 

Term  Rep.  607.  Long  v.  Wehl),  24  Minn.  380;  Under- 

^  Smith  V.  Talbot,  11  Ark.  666.  wood  v.  Frencli,  6  Or.  60;  25  Am.  Rep. 

SEistoni).  Brattmi,  13  Tex.  30.  500;   Burthe  v.   Denis,  1.33  U.  S.   515; 

«  Wdcox    V.    Lee,    1    Rob.    (N.   Y.)  Lordlard  v.  Clyde,   122  N.  Y.  41;  19 

355.  Am.  St.   Rep.  470;  Davidson  v.  New 

»  Perkins  v.  Parker,  10  Allen,  22.  Orleans,   32  La.    Ann.    1424;   Jones  v. 

•  Baxter  v.  Aubrey,  41  Mich.  13.  Perkins,  54  Me.  393;  Butler  v.  Suffolk 

'  Wood  V.  Faut,  55  Mich.  185.  Glass  Co.,  126  Mass.  512. 


§  275  THE    JUDGMENT   AS    AN    ESTOPPEL.  500 

in  truth  litigated/  In  other  words,  where  it  appears  by 
the  record  that  a  particular  issue  was  determined,  all 
question  of  fact  is  excluded,  and  the  court  must,  as  a  mat- 
ter of  law,  declare  such  determination  to  exist  and  to  be 
conclusive.^  In  New  York,  because  the  proceedings  in 
justices'  courts  are  informal,  it  is  said  that  the  rule  ex- 
cluding from  the  effect  of  a  former  judgment  matters  not 
apparently  within  the  issues  is  not  always  applicable,  and 
that  it  may  be  shown  that  matters  were  received  in  evi- 
dence and  adjudicated  which  were  not  within  the  issues.' 
Parol  proof  can  be  given  to  show  the  grounds  of  a  judg- 
ment only  when  such  grounds  do  not  appear  from  the 
record  itself.  In  no  case  can  any  matter  be  alleged  or 
proved  to  have  been  passed  upon,  except  it  be  such  as 
might  have  been  given  in  evidence,  legitimately,  under 
the  issue  joined.*  Where  a  complaint  is  free  from  am- 
biguity, it  cannot  be  shown  that  the  judgment  given 
thereon  was  for  damages  occasioned  by  injuries  to  land 
not  a  part  of  the  premises  described  in  the  complaint.' 
A  provision  of  a  statute  provided  that  whenever  a  sheriff 
failed  to  make  money  on  an  execution  by  the  first  day  of 
the  term  before  which  it  was  returnable,  the  plaintiff 
might  suggest  that  the  failure  was  attributable  to  want  of 
diligence,  and  that  upon  such  suggestion  the  court  should 
cause  an  issue  to  be  made  to  try  the  fact.  In  an  action 
upon  a  sheriff's  bond  for  not  making  money  on  an  exe- 
cution, the  defendants  pleaded  that  an  issue  made  under 
this  statute  had  been  found  in  their  favor.  Plaintiffs  re- 
plied that  the  matters,  neglects,  and  defaults  complained 
of  were  not  the  same  identical  ones  in  respect  to  which 
defendants  recovered  their  judgment.  It  was  held  that 
the  matters  sought  to  be  put  in  issue  in  the  replication 

•  Campbell   v.  Butts,  3  K  Y.   173;  »  McLean   v.    Hungarin,    13  Johns. 

Campljell  v.   Consalus.  25  N.  Y.  616;  184;     King     v.      Fuller,     3     Caines, 

Standish   v.  Parker,    2   Pick.    20;    13  152;     Wilder     v.     Case,     16     Wend. 

Am.  Dec.  393.  583. 

2  Bitzer  v.  Killinger,  46  Pa.  St.  44;  *  Briggs  v.  Wells,  12  Barb.  567. 

Coulter  V.  Price,   13  Lea,  451;  Fiuley  »  Gay  v.  Wells,  7  Pick.  219. 
V.  Hanbest,  30  Pa.  St.  190. 


501  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  27G 

were  necessarily  involved  in  the  former  trial,  and  that  to 
uphold  the  replication  would  he  to  permit  a  second  litiga- 
tion of  the  same  questions;  that  the  facts  in  issue  in  the 
suit  appear  hy  necessary  intendment  to  be  the  facts  in- 
volved in  the  proceeding  under  the  statute;  and  that  to 
say  they  were  not  so  involved  is  to  contradict  the  record 
itself.^  When  the  subject-matter  of  the  present  and  the 
former  action  is  not  the  same,  the  principles  stated  in 
this  section  may,  in  some  instances,  seem  inapplicable. 
Thus  if  after  an  action  has  been  prosecuted  to  final  judg- 
ment on  a  bond  or  note  resulting  in  a  recovery  by  the 
plaintiff,  the  defendant  can  never,  in  another  action  in- 
volving the  same  note,  be  permitted  to  show  that  he  had 
a  good  defense  thereto,  "which  he  failed  to  present  for  the 
consideration  of  the  court  in  the  first  action,  and  thereby 
pi-eserved  it  from  the  operation  of  the  judgment;  in  other 
words,  he  cannot  show  that  the  matter  of  his  defense  has 
not  become  res  judicata,  for  to  do  so  would  clearly  contra- 
dict the  record.  But  if  the  defendant  were  to  be  sued 
upon  another  note  or  bond  of  the  same  series,  and  to 
which  he  in  fact  had  no  other  defenses  than  those  which 
existed  against  the  former  note  or  bond,  he  may  show 
that  some  valid  defense  existing  against  both  was  not  pre- 
sented and  litigated  in  the  former  action,  and  may  avail 
himself  of  such  defense  in  the  present  case,  though  for- 
ever barred  from  using  it  against  the  recovery  in  the 
prior  action.^ 

§  276.  Onus  of  Proof.  — There  are  two  classes  of  cases 
in  which  evidence  aliunde  is  admissible  for  the  purpose 
of  showing  what  matters  are  res  judicata,  viz.:  1.  All  those 
cases  in  which  from  the  record  alone  no  intimation  is 
given  whether  a  particular  matter  has  been  determined  or 
not;  2.  All  those  cases  in  which  from  the  record  it  ap- 
pears that  a  particular  question  was  probably  determined. 

»  Chapman  ».  Smith,  IG  How.  114.        U.  S.   .351;    Davis  v.  Brown,  94  U.   S. 
*  Cromwell    v.    County    of    Sac,    94     423;  Russell  v.  Place,  94  U.  S.  GOG. 


§   276  THE    JUDGMENT    AS    AN    ESTOPPEL.  502 

As  a  general  rule,  the  onus  of  establishing  an  estoppel  is 
by  the  law  cast  upon  him  who  invokes  it/  Under  this 
rule  there  can  be  no  doubt  that  in  all  cases  coming  under 
the  first  class  it  is  incumbent  upon  a  party  alleging  that 
a  question  has  been  settled  by  a  former  adjudication  to 
supi^ort  his  allegation  by  evidence  aliu7ide}  But  in  rela- 
tion to  cases  of  the  second  class,  there  appears  to  be  a 
radical  difference  of  opinion.  On  the  one  side  it  is  claimed 
that  "where  the  declaration  in  the  second  action  is  framed 
in  such  a  manner  that  the  causes  of  action  may  be  the 
same  as  those  in  the  first  suit,  it  is  incumbent  upon  the 
party  bringing  the  second  action  to  show  that  they  are  not 
the  same."^  "A  party  who  brings  a  second  action  must 
not  leave  it  to  nice  investigation  to  see  whether  the  two 
causes  are  the  same.  He  ought  to  show  beyond  doubt 
that  the  second  is  a  different  cause  of  action  from  the  first, 
in  which  he  failed."*  In  cases  where  several  issues  are 
made  by  the  pleadings,  and  evidence  is  given  upon  all 
those  issues,  and  a  general  verdict  is  obtained,  the  ques- 
tion arises  as  to  which  of  the  issues  this  verdict  is  con- 
clusive. In  Vermont,  Oregon,  Pennsylvania,  and  Indiana 
the  2:)resumption  is,  that  it  is  conclusive  that  all  the  issues 
were  found  in  favor  of  the  prevailing  party.  Whoever 
denies  this  must  rebut  that  presumption,  if  he  can,  by 
showing  that  the  finding  and  judgment  were  upon  a  par- 
ticular issue.*  In  Massachusetts  it  is  settled  by  a  number 
of  decisions  that  a  general  verdict  in  favor  of  a  party  pre- 
senting several  claims  or  defenses  is  not  of  itself  prima 
facie  conclusive  upon  any  of  those  claims  or  defenses. 
Thus  in  an  action  for   breaking  several  covenants  in  a 

^  Cummings  v.  Col  grove,  25  Pa.  St.  *  Lord  Bagot  v.  Williams,  3  Barn.  & 

150;  Bennett  v.  Holmes,  1  Dev.  &  B.  C.  235. 

486;  Strother  v.  Butler,   17  Ala.  733;  *  Agnew  v.  McElroy,   10  Smedes  & 

Doty  V.  Brown,  4  N.  Y.  71;  53  Am.  M.  552;  48  Am.    Dec.  772;  Baxter  v. 

Dec.  350;  Davis  v.  Talcott,   14  Barb.  Aubrey,  41  Mich.  13. 

611;  Smalley  v.  Edey,  19  111.  207;  Van  ^  Hall  v.  Zeller,   17  Or.  381;  White 

Valkenburgv.  Milwaukee,  43  Wis.  574.  v.   Simonds,  .33  Vt.  178;  78  Am.  Dec. 

•■'  Pruitt  V.  Holly,  73  Ala.  369;  Han-  G20;  Rockwell  v.   Langley,  19  Pa.  St. 

cheyw.  Croskery,  81  Ala.  149;  Morgan  502;  Day  v.   Vallette,  25  Ind.  42;  87 

V.  Burr,  58  N.  H.  470.  Am.  Dec.  353. 


503  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  276 

lease,  the  plaintiff  recovered  a  general  verdict  for  nominal 
damages.     In  a  subsequent  action,  the  record  in  the  for- 
mer action  was  held  not  to  show,  of  itself,  that  the  breach 
in  question  was  res  judicata.     The  cause  was  remanded 
for  further  proceedings,  in  which  it  was  shown,  by  evi- 
dence aliunde,  that  the  breach  involved  in  the  second  ac- 
tion was  one  of  the  questions  litigated  in  the  former  suit, 
and  on  which  evidence  was  offered  at  the  trial.    With  this 
proof  to  support  it,  the  former  judgment  was  considered 
a  bar.^    According  to  some  of  the  most  recent  and  author- 
itative adjudications  upon  this  subject,  "if  there  be  any 
uncertainty  in  the  record,  as,  for  example,  if  it  appear 
that  several  distinct  matters  may  have  been  litigated,  upon 
one  or  more  of  which  judgment  was  rendered,  the  whole 
subject-matter  of  the  action  will  be  at  large  and  open  to 
a  new  contention,  unless  the  uncertainty  be  removed  by 
extrinsic  evidence  showing  the  precise  point  involved  and 
determined."^     In  an  action  where  plaintiff  sought  to  re- 
cover from  defendant  for  board  of  the  latter's  wife,  and 
at  the  trial  relied  on  two  grounds,  viz.:  1.  That  she  was 
absent  from  her  husband  by  his  consent;  2.  That  she  was 
^justifiably  absent  from  him  on  account  of  his  cruelty  to 
lier,  —  a  judgment  was  rendered  for  plaintiff.     This  judg- 
ment was  held  to  establish  against  defendant  that  his  wife 
was  justifiably  absent,  and  to  leave  the  jury  to  judge  from 
the  judgment,  and  from  such  other  evidence  as  came  be- 
fore them,  whether  the  ground  of  the  former  recovery  was 
absence    by  consent  or  absence  on  account  of  cruelty.* 
In  the  same  state  a  decree  dismissing  a  bill  was  insisted 
upon  as  a  bar.     It  appeared  from  the  record  that  some 
temporary  defenses  were  relied  upon  in  the  former  suit, 
but  that  the  bill  was  dismissed  without  specifying  any 
reasons,  and  without  any  restriction  upon  its  effect.     It 

1  Sawyer  v.  Woodbury,  7  Gray,  499;     Ocean  etc.  Co.,  125  N.  Y.  341;  Bell  v. 
66  Am.  Dec.  588.  Mernfiekl,  109  N.  Y.  202;  4  Am.  St. 

2  Russell   V.    Place,    94  U.    S.    60G;     Rep.  4:?(j. 

Chri.sinan's     Adin'r     v.     Harman,    29         ^  Burlea    v.     Shauuon,     14     Gray, 
Gratt.  494;  20  Am.  Rep.  387;  Lewis  v.     433. 


§  276  a  THE    JUDGMENT   AS    AN    ESTOPPEL.  504 

was  decided  not  to  be  conclusive  on  the  merits.  In  an- 
nouncing this  decision,  the  court  said:  "To  be  a  bar  to 
future  proceedings,  it  must  appear  that  the  former  judg- 
mient  necessarily  involved  the  determination  of  the  same 
fact,  to  prove  or  disprove  which  it  is  offered  in  evidence. 
It  is  not  enough  that  the  question  was  in  issue  in  the  for- 
mer suit;  it  must  also  appear  to  be  precisely  determined. 
Where  in  the  answer  various  matters  of  defense  are  set 
forth,  some  of  which  relate  to  the  maintenance  of  the  suit, 
and  others  to  the  merits,  and  there  is  a  general  decree  of 
bill  dismissed,  it  is  impossible  to  hold  the  decree  a  bar  to 
future  proceedings,"^  In  Kentucky,  if  the  record  of  a  for- 
mer judgment  is  not  shown,  it  will  be  presumed  to  have 
been  entered  on  the  merits.^  If  relief  in  equity  is  sought 
upon  several  grounds,  and  the  bill  is  dismissed,  this  is 
necessarily  a  decision  against  all  of  them.^  So,  generally, 
if  two  or  more  causes  of  action  are  united,  a  judgment  in 
favor  of  plaintiff  for  one  only  is  conclusive  against  him 
as  to  the  other;*  and  if  a  judgment  may  be  rested  upon 
either  of  two  grounds,  and  the  court  in  fact  decides  both 
of  them,  then  the  judgment  is  conclusive  respecting  both.^ 

i< 
§  276  a.  Where  there  are  Several  Defenses,  any  one  of 
which  is  sufficient  to  defeat  the  action,  and  the  court  or 
jury  finds  specially  in  favor  of  the  defendant  upon  all  of 
them,  each  becomes  res  judicata,  and  the  judgment  is  upon 
the  merits,  although  some  of  the  defenses  are  in  the  nature 
of  pleas  in  abatement,  and  go  only  to  defeat  the  present 
action.^  If  a  bill  in  equity  is  demurred  to  upon  several 
distinct  grounds,  and  on  this  demurrer  a  general  decree 
is  entered  of  bill  dismissed,  this  is  a  judgment  upon  the 

'  Foster  t>.  The  Richard  Busteed,  100  Mass.   178;  Hoyle  v.  Farquharson,  80 

Mass.  409;  1  Am.  Rep.  425;  Burlen  v.  Mo.  37/. 

Slianiion,  99  Mass.  200";  96  Am.  Dec.  *  Hawes  v.  Contra  Costa  W.  Co.,  5 

733.  Saw.    287;    Florida    etc.    R'y   Co.    v. 

••*  National  Bank  v.  Bryant,  13  Bush,  Schutt,  103  U.  S.  118. 

419.  «  The  420  Mining  Co.  v.  Bullion  Min. 

^  Attorney-General   v.   Chicago  etc.  Co.,   3  Saw.   634;  Hawes  v.  C.   C.   W. 

K.  R.  Co.,  112  111.  520.  Co.,    5    Saw.    287;    7   Reporter,    100; 

*  Bassett   v.  Conn,    R.  R.  Co.,   150  Sheldon  v.  Edwards,  35  N,  Y.  286, 


505 


THE    JUDGMENT    AS    AN    ESTOPPEL.  §  277 


merits,  though  some  of  the  grounds  of  demurrer  did  not 
involve  the  merits  of  the  suit/  If  several  defenses  are 
presented,  some  of  which  in  point  of  law  are  good  and 
others  bad,  and  defendant  has  judgment,  it  will  not  be 
presumed  that  the  court  decided  erroneously  and  gave 
judgment  in  his  favor  on  the  insufficient  defense.  That 
defense,  therefore,  is  not  affected  by  the  judgment.^ 

Part  IV.  —  IMATTERS  WHICH  NEED   NOT  BE  LITIGATED. 

§277.  Set-off  not  Presented.— It  has  already  been 
stated  that  the  defendant  is  not  barred  by  judgment  of 
any  matter  of  defense  which  he  was  not  bound  to  present 
to  the  court  or  jury,  and  on  which  he  offered  no  evidence 
at  the  trial.  The  statutes  of  set-off  are  for  the  benefit  of 
defendants,  and  plaintiffs  cannot  compel  defendants  to 
avail  themselves  of  those  benefits.  It  is  well  understood 
that,  unless  some  state  statute  provides  otherwise,  the 
defendant  may  waive  his  set-off  or  counterclaim  in  an 
action  against  him,  and  thereafter  litigate  it  in  an  action 
instituted  by  himself.*  By  the  Code  of  Civil  Procedure  of 
California,  if  the  counterclaim  arises  "  out  of  the  transac- 
tion set  forth  in  the  complaint  as  the  foundation  of  the 
plaintiff's  claim,"  or  is  "  connected  with  the  subject  of  the 
action,"  and  the  suit  is  in  any  other  than  a  justice's  court, 
the  defendant,  by  omitting  to  set  up  such  counterclaim, 
waives  all  right  to  subsequently  employ  it  as  a  cause  of 
action.*  But  if  the  action  is  in  a  justice's  court,  then 
the  defendant  must  present  all  facts  "  constituting  a 
defense  or  counterclaim  upon  which  an  action  might  be 
brought  by  the  defendant  against  the  plaintiff  in  a  jus- 
tice's court";  and  if  he  fails  so  to  do,  "neither  he  nor 
his  assignee  can  afterward  maintain   an  action  against 

»  House  V.  Mullen,  22  Wall.  42.  ton,  7  Port.  110;  McEwen  v.  Bigelow, 

*  Lenton  v.  Crosby,  61  Iowa,  401.  40  Mich.  215;  Emmerson  v.  Heniford, 

*  Waterman  on  >Set-off,  G31;  Hobbs  8  Bush,  229;  Fannin  v.  Thomasson,  45 
V.  Duff,  23  Cal.  590;  Robljins  v.  Har-  Ga.  533;  Weaver  v.  Brown,  87  Ala, 
rison,  31  Ala.  160;  Le  Guen  v.  Gou-  533;  Axtel  v.  Chase,  83  Ind.  546;  Sa- 
verneur,  1  Johns.  Cas.  501;  1  Am.  very  v.  Sypher,  39  Iowa,  675;  Kezar 
Dec.    121;  Robinson  v.  Wiley,  Hemp.  v.  Elkins,  52  Vt.  119. 

38.     Contra,  see  Crawford  v.  Simou-         *  Code  Civ.  Proc,  sees.  438,  439. 


§   277  THE    JUDGMENT    AS    AN    ESTOPPEL.  506 

the  plaintiff  therefor."'  In  some  states,  while  the  right 
to  waive  a  set-off'  or  counterclaim  and  institute  a  suit 
upon  it  afterward  is  recognized,  yet  defendants  are  dis- 
couraged from  so  doing  by  a  provision  of  the  statute 
providing  that  in  the  subsequent  action  they  shall  not 
recover  costs.^  Sometimes,  however,  counterclaims  are 
created  by  statute,  and  required  to  be  presented  in  actions 
against  the  persons  entitled  to  their  benefit.  Thus  if  per- 
sons in  possession  of  property,  on  being  sued  therefor  by 
the  holders  of  paramount  title,  are  entitled  in  such  action 
to  an  allowance  for  improvements  made  or  taxes  paid,  but 
fail  to  present  their  claims  therein,  they  cannot  subse- 
quently assert  such  claims.'  Though  a  matter  is  pleaded 
as  a  set-off  or  counterclaim,  yet  if  it  is  for  any  reason  not 
allowable  as  such  in  the  action,  and  is  excluded  from  evi- 
dence, and  not  taken  into  consideration  in  rendering  judg- 
ment, an-  action  may  afterward  be  maintained  thereon.* 
"While  all  matters  of  defense  are  barred,  the  distinction 
between  a  matter  of  defense  and  a  cross-claim  must  be 
constantly  kept  in  view.  A  cross-claim,  set-off,  or  matter 
of  recoupment  may  be  interposed  by  defendant,  but  he  is 
not  bound  to  do  so.  Thus  though  in  an  action  for  the 
price  of  goods  sold  defendant  might  give  in  evidence  a 
breach  of  warranty  of  those  goods,  or  of  deceit  in  the 
sale,  and  so  defeat  the  action  in  whole  or  in  part,  yet  he 
is  under  no  obligation  to  do  so,  and  he  may  maintain  his 
cross-action  for  the  damages,  after  having  submitted  to 
a  judgment  for  tlie  price.^  When  part  performance  of 
a  contract  (e.  g.,  to  work  for  a  year)  forms  the  ground  of 
an  action,  the  defendant  may  suffer  judgment,  and  after- 
ward may  sue  and  recover  damages  for  a  breach  of  the 
contract.^     A  sued  B  to  recover  the  price  of  constructing 

'  Code  Civ.  Proc,  sees.  855,  856.  Mfg.  Co.  v.  Colgate,  12  Ohio  St.  344; 

■■'Oliio    Code,    96,    119;    Neb.    Code,  Beebe  r.  Buell,  12  Wend.  504;  27  Am. 

102    116.  I'ec.  150;  Fitield  v.  Edwards,  39  Mich. 

^Raymond   v.    Ross,    40    Ohio    St.  264. 

343      •'  &  Cook  V.  Moseley,  13  Wend.  277. 

*'Haas  V.  Taylor,  80  Ala.  459;  Crab-  «  Biitton  r.  Turner,  6  N.  H.  481;  26 

tree  v.   Welles,   19  III.  65;   Lancaster  Am.  Dec.  713. 


507  THE    JUDGMENT    AS    AN    ESTOPPEL.  §   278 

a  kitchen  range.  The  defendant  paid  into  court  a  sum 
which  plaintiff  accepted  as  a  full  satisfaction.  B  then, 
sued  A  for  negligently  performing  the  work,  and  was  per- 
mitted to  recover,  on  the  ground  that  the  recovery  in  the 
second  action  was  not  inconsistent  with  the  work  sued  for 
in  the  first,  being  of  some  value.^  If  a  matter  avaihible 
as  a  counterclaim  is  relied  upon  as  a  defense,  and  the  de- 
cision is  against  it,  it  cannot  afterward  be  asserted  either 
as  a  counterclaim  or  cause  of  action.^  But  when  it  is 
allowed  as  a  defense  to  the  extent  of  preventing  any  re- 
covery by  plaintiff,  the  question  may  then  arise  whether 
it  can  be  used  as  a  counterclaim  or  cause  of  action  for  the 
purpose  of  supporting  any  further  recovery.  In  Massa- 
chusetts a  party  who  is  sued  and  is  entitled  to  urge  a 
matter,  either  as  a  defense  to  an  action  or  as  a  ground  for 
a  recovery  in  an  independent  action,  must  elect  which  he 
will  do,  and  if  he  elects  to  interpose  it  as  a  defense  merely, 
and  obtains  the  benefit  of  it  as  such,  cannot  afterwards 
maintain  a  further  action  to  recover  damages,  though 
such  damages  exceed  the  amount  of  the  benefit  involved 
in  the  former  defense.' 

§  278.  Set-off  not  Decided.  —  If  the  defendant  sets  up 
and  claims  a  set-off,  and  the  records  shows  that  the  court 
excluded  all  evidence  in  relation  to  the  set-off,  the  judg- 
ment cannot  be  used  as  an  estoppel  in  an  action  by  the 
defendant  for  the  same  set-off,^  because  "although  a  court 
of  law  declines  to  determine  a  question  of  set-ofif,  yet  it  is 
not  res  judicata,  so  as  to  preclude  an  inquiry  in  a  court  of 
equity."*  And  the  same  rule  prevails  where,  instead  of 
the  court's  excluding  the  evidence,  the  defendant  failed 
to  present  any  proof  in  support  of  his  counterclaim.® 

1  Rigge  V.  Burbidge,  15  Mees.  &  W.  *  Hobbs  v.  Duff,  23  Cal.  506. 

598.  *  Hackett  v.   Coimett,  2  EJw.  Ch. 

■■'  Patrick  v.  Shaffer,  94  N.  Y.  42.3.  73.- 

3  O'Conner  v.  Varney,  10  Gray,  231;  "  Eastmure  v.   Laws,   7  Scott,  4G1 

Bennett?'.  Gray,  4  Gray,  511;  Sawyer  Reynolds  v.    Reynolds,    3  Ohio,    2()S 

V.    Woodbury,   7   Gray,    499;    66   Am.  Janney  v.  Smith,  2  Cranch  C.  C.  4!t9 

Dec.   518.     But  see   Odborue  v.   Wil-  Garrott  v.  Johnson,  11  Gill  &  J.  173 

liams,  39  Minn.  353.  35  Am.  Dec.  272. 


§  279  THE    JUDGMENT    AS    AN    ESTOPPEL.  608 

§  279.  Set-off  not  Allowed.  —  There  is  no  doubt  that  if 
a  set-off  is  presented  by  defendant  in  his  pleadings,  and 
attempted  to  be  supported  by  evidence  to  the  jury,  it  will, 
whether  allowed  or  disallowed,  become  res  judicata.  It  is 
settled  by  the  judgment  as  conclusively,  when  it  does  not 
appear  to  have  been  allowed,  as  though  there  were  an 
express  finding  against  it.^  AVhen  the  set-off  has  been 
presented  to  the  jury,  and  evidence  offered  to  sustain  it, 
the  effect  of  the  judgment  afterward  rendered  cannot  be 
changed  in  a  subsequent  action  by  showing  that  the  jury 
did  not  in  fact  consider  the  set-off  in  making  their  ver- 
dict.^ If  a  judgment  is  pleaded  as  a  set-off  when  it  is  a 
proper  matter  of  set-off,  and  is  disallowed  by  the  jury,  it 
is  extinguished,  and  can  no  longer  be  the  basis  of  an 
action.  If  the  plaintiff  afterward  issues  execution  upon 
it,  he  is  a  trespasser.^  A  claim  presented  as  a  set-off,  and 
not  allowed,  will  not  be  barred,  except  it  was  in  such  a 
condition  as  to  have  been  barred  if  then  offered  as  a 
cause  of  action  in  a  suit  by  the  defendant  against  the 
plaintiff.  Thus  if  when  offered  it  is  not  legally  a  set-off, 
because  not  yet  due,  it  may,  if  not  allowed,  be  employed 
as  a  cause  of  action  or  as  a  set-off  in  any  subsequent  suit 
between  the  same  parties.  If  the  defendant  pleads  matter 
which  he  might  have  made  the  basis  of  a  suit,  and  on  the 
trial  cross-examines  the  plaintiff's  witnesses  in  reference 
to  the  matters  so  pleaded  in  defense,  he  cannot  avoid  the 
effect  of  the  judgment  on  the  ground  that  he  introduced 
no  witnesses  to  testify  on  the  subject,  nor  because  the 
referee  decided  the  case  before  the  defendant  was  pre- 
pared with  all  his  proofs.* 

The  language  generally  employed  in  treating   of  this 

1  Wright  V.   Salisbury,  46   Mo.    26;  cient:   Green   v.    Sanborn,    150   Mass. 

Nave  I'.  Wilson,  33  Ind.  294;  Howe  v.  454. 

Lewis,  121  Ind.   110;  Stevens  v.   Mil-         2  Baker  r.  Stincbfield,  57  Me.  363. 
ler,  13  Gray,  283;  Worrell  w.  Smith,  6         '  McGuinty    v.    Herrick,    5    Wend. 

Col.  141;  Ruegger  i\  Indianapolis  etc.  240.     The  same  rule   applies  to  mat- 

R.   R.   Co.,    113    111.    449.     Nor   is    it  ters   of  defense   erroneously   rejected: 

material  that  the  evidence  to  support  Collins  v.  Bennett,  46  N.  Y.  490. 
a  set-off  was  excluded  because  insuifi-         *  Ehle  v.  Bmgliam,  7  Barb.  494. 


609  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  280 

subject  is  such  as  to  indicate  that,  to  coiiclucle  a  claim 
of  set-off,  it  must  be  presented  to  the  jury,  and  some  evi- 
dence given  upon  it.  But  it  has  been  decided  that  a  set- 
off not  withdrawn  becomes  res  judicata,  though  no  evidence 
is  given  to  support  it,  and  the  defendant  was  not  prepared 
to  give  such  evidence  at  the  trial  of  the  former  case.' 
This  seems  to  be  a  just  and  reasonable  decision.  There 
is  as  much  propriety  in  requiring  defendant  either  to 
litigate  or  withdraw  his  demands  as  there  is  in  requiring 
the  plaintiff  to  support  or  withdraw  his  alleged  causes  of 
action. 

§  280.  Voluntary  Allowance  of  an  Offset.  —  A  plaintiff 
cannot,  in  a  suit  against  the  defendant,  compel  the  latter 
to  present  or  litigate  his  counterclaim  by  giving  him 
credit  for  any  items  of  such  claim  and  suing  for  the  bal- 
ance. Thus  if  A  sue  B  upon  an  account  in  which  he 
credits  B  with  certain  goods,  B  may  suffer  judgment  by 
default,  and  may  then  sue  A  for  the  goods,  if  the  credit 
was  not  their  full  value.  The  value  of  the  goods  is  not 
fixed  by  the  former  judgment,  because  it  was  not  directly 
in  issue,  and  the  defendant  offered  no  evidence  upon  it. 
He  is  not  bound  to  offer  such  evidence  at  his  own  ex- 
pense, when  he  can,  by  commencing  another  action,  offer 
it  at  the  expense  of  his  adversary.^  But  if  the  credits  for 
goods  were  of  their  full  value,  this  is  a  good  defense  to 
an  action  brought  by  the  defendant  against  the  plaintiff 
for  the  same  goods.^  If  the  plaintiff  brings  an  action  in 
which  he  credits  defendant  in  certain  sums,  and  claims 
an  amount  specified  as  a  balance  due,  the  defendant  may 
come  in  and  confess  judgment  for  the  amount  sued  for, 
and  this  will  not  prevent  him  from  sustaining  a  subse- 
quent action  for  demands  due  to  him  from  the  plaintiff, 
and  not  allowed  by  the  latter  in  the  first  suit.* 

'  Eastmure  v.  Laws,  7  Dowl.  431.  ^  Briggs  v.  Richmond,  10  Pick.  392; 

^  Minor   v.    Walter,    17    Mass.    2.37;     20  Am.  Dec.  52G. 
McEwen  v.  Bigclow,  40  Mich.  215.  *  Kauffw.  Me^sner,  4  Brewst.  98. 


§  281  THE    JUDGMENT    AS    AN    ESTorPEL.  510 

§  281.  Equitable  Defenses.  —  It  follows  from  the  rule 
that  a  matter  cannot  become  res  judicata  until  it  can  be 
tried  upon  the  merits,  that  a  failure  at  law  does  not  affect 
a  remedy  or  defense  cognizable  only  in  equity.^  When- 
ever a  "party  has  equitable  rights  not  cognizable  in  a 
court  of  law  which  would  in  a  court  of  equity  have  pre- 
vented such  an  adjudication  as  was  made  in  the  court  of 
law,  the  judgment  wall  interpose  no  obstacle  to  redress  in 
equity,  since  the  court  of  law  had  no  proper  jurisdiction 
of  the  subject-matter  forming  the  basis  of  redress  in 
equity.'"^  Under  the  code  of  procedure  as  in  force  in 
New  York  and  in  California,  matters  formerly  recognized 
only  in  equity  may  be  interposed  as  defenses  to  actions  at 
law.  The  question  has  arisen  in  both  states  whether  it 
is  incumbent  on  the  defendant  to  present  his  equitable 
defense,  or  whether  he  may  suffer  judgment  to  be  taken 
against  him,  and  subsequently  assert  his  claims  in  equity. 
The  answer  given  to  the  question  in  the  former  state  is, 
that,  "as  a  general  rule,  the  defendant  who  has  an  equi- 
table defense  to  an  action,  being  now  authorized  to  inter- 
pose it  by  answer,  is  bound  to  do  so,  and  shall  not  be 
permitted  to  bring  a  separate  action  merely  for  the 
purpose  of  restraining  the  prosecution  of  another  action 
pending  in  the  same  court."  ^  In  California,  however, 
the  answer  is  in  direct  conflict  w'ith  that  given  in  New 
York.  In  an  early  case  it  was  held  that  "although  a 
party  may  set  up  an  equitable  defense  to  an  action  at 
law,  his  remedy  is  not  confined  to  that  proceeding.  He 
may  let  the  judgment  go  at  law,  and  file  his  bill  in  equity 
for  relief.  Our  practice,  while  it  enlarges  the  field  of 
remedy,  does    not   take    away  pre-existing  remedies    by 

J  Mosby  V.    Wall,   23   Miss.  81 ;   55  Ala.  345;  Hawley  v.  Simons,   102  III. 

Am.  Dec.  71;  White  v.  Crew,  16  Ga.  115. 

416;  Arnold  v.  Grimes,  2  Clarke,  1;  ^  Story's  Eq.  Jiir.,  sec.  1573;  Dun- 
Pollack  V.  Gilbert,  16  Ga.  398;  60  Am.  ham  v.  Downer,  31  Vt.  249. 
Dec.  7^2;  McCurry  v.  Robinson,  23  ^  Wintiekl  v.  Bacon,  24  Barb.  154; 
Ga.  321;  Worthington  v.  Curd,  22  Foot  v.  Sprague,  12  How.  Pr.  ^r>5; 
Ark.  277;  Nims  v.  Vaughn,  40  Mich.  Fannin  r.  Thomasson,  45  Ga.  553; 
35();  Chicago  etc.  R.  R.  Co.  v.  Hay,  Tuttle  v.  Harrill,  85  N.  C.  456. 
119  111.  439;  Jenkins  v.  Harrison,  66 


511  THE    JUDGMENT    AS    AN    ESTOPPEL.  §   2S2 

implication."^  Ten  years  later,  it  was  said  that  "this  de- 
cision has  been  acquiesced  in  and  acted  on  as  settled  law 
by  the  profession  from  the  time  it  was  rendered,  and,  so 
far  as  we  are  advised,  its  correctness  has  never  been  the 
subject  of  judicial  doubt."  ^  Accordingly,  a  defendant, 
who,  having  an  equitable  defense  to  an  action  of  eject- 
ment on  the  ground  that  he  was  entitled  to  a  conveyance 
from  the  plaintiff,  and  who  first  pleaded  such  defense,  and 
afterward  withdrew  it,  and  suffered  judgment  to  be  taken 
against  him,  was  allowed  in  a  subsequent  suit  to  compel 
the  specific  performance  of  the  contract  to  convey.  A  like 
rule  prevails  where  the  defendant,  pleading  an  equitable 
defense,  without  withdrawing  it,  fails  to  appear  at  the  trial, 
and  judgment  is  therefore  given  against  him  without  any 
presentation  or  consideration  of  his  defense.^  And  even 
though  the  rule  prevails  that  equitable  defenses  must  be 
interposed,  it  is  not  operative  where  a  defense  exists 
which  could  not  be  made  available  in  the  court  of  law  for 
want  of  proper  parties,  or  for  which,  if  then  interposed, 
the  court  could  not  grant  adequate  relief.*  If  an  equitable 
defense  is  interposed,  which  the  court  has  jurisdiction  to 
entertain,  its  decision  in  favor  of  the  plaintiff  is  conclu- 
sive, and  the  defendant  cannot  subsequently  assert  as  an 
affirmative  cause  of  action  that  w^hich  he  failed  to  estab- 
lish as  a  defease.^ 

§282.  Cross-claims.  —  Whenever  a  plaintiff  seeks  to 
recover  for  some  matter  which  he  might  have  presented 
in  a  former  action  against  himself  as  the  foundation  for 
a  claim  in  the  nature  of  a  cross-action  for  damages,  the 
test  of  his  right  to  recover  in  the  second  action,  after  hav- 
ing waived  his  cross-claim  in  the  first,  is.  Can  all  the  facts 

1  Lorraine  v.  Long,  6  Cal.  452.  *  Parnell  v.  Hahn,  61  Cal.  131;  Pres- 

!«  Houi^h  D.  Waters,  .30  Cal   oUH;  Hills  ton  v.  Rickets,  91    Mo.  3-0;  St.  Louis 

I'.  Sherwood,  48  Cal.  3S();  Hill  ?;.  Coojier,  v.  Scliuleiiherg,  98  Mo.  61.3;  Wiiipeniiy 

6  Or.  181;  Spaur  v.  McB^e,  19  Or.  70.  v.  Wiiiijejiny,  9'2  Pa.  St.  440;  Kcas  v. 

=*  McC-earv  v.  Casey,  45  Cal.  128.  Vickers,    27    W.    Va.    45(1;    TerriU  v. 

*  RadcLffe'  y.    Varney,   56  (ia.   222;  Hggs,    1    J)e   (iex    &  J.  388;    Arnold 

Waters  V.   Perkins.  05  Ca.  32;  S|jHur  v.  Aliinor,  15  Uraut  (U.  C),  375. 
V.  McBee,  19  Or.  70. 


§  282  THE    JUDGMENT   AS    AN    ESTOPPEL.  512 

necessary  to  support  the  judgment  rendered  against  him 
exist  at  the  same  time  with  the  facts  necessary  to  support 
the  cross-claim  sought  to  be  enforced  in  the  second  suit? 
For  if,  in  order  to  recover  in  the  first  action,  the  j)laintiff 
must  have  shown  the  falsity  of  the  allegations  made  by 
defendant  in  the  second  suit,  then  the  former  judgment 
is  a  bar.^  Thus  if  plaintiff  sues  upon  a  contract  to  do 
certain  w^ork  upon  his  part,  alleging  a  full  performance, 
and  claiming  the  price  stipulated  by  the  contract,  his  re- 
covery depends  upon  a  full  compliance  with  his  agree- 
inent,  and  estops  the  defendant  from  afterward  contending 
that  he  sustained  any  damage  from  the  non-fulfillment  of 
the  contract.^  Therefore  a  recovery  by  a  carrier  for  the 
amount  of  his  charges  for  transportation  j)recludes  the 
defendant  from  maintaining  an  action  for  damages  for 
the  negligence  of  such  carrier  in  not  transporting  the 
property  in  due  time.^  A  judgment  in  favor  of  a  physician 
and  surgeon  for  professional  services  is  a  bar  to  an  action 
against  him  by  the  defendant  in  the  former  action  for 
malpractice  in  rendering  those  services/  If,  however, 
a  matter  in  the  nature  of  a  defense  and  cross-claim  is 
pleaded,  the  contrary  of  which  need  not  necessarily  be 
established  by  plaintiff  in  making  out  his  cause  of  action 
under  the  allegations  in  his  complaint,  the  defendant 
may  withdraw  it  at  or  before  the  trial,  without  losing  his 
right  to  assert  it  in  a  subsequent  suit.  Thus  the  recovery 
upon  a  complaint  for  work  and  and  labor  done,  etc.,  will 
not  estop  defendant  from  recovering  damages  sustained 
by  him  by  the  manner  of  performing  the  work  and  labor; 
because  the  claim  of  the  defendant  "not  being  necessary 
or  at  all  involved,  as  part  of  the  plaintiflf's  evidence,  prima 

1  Dunham  v.  Bower,  77  N.  Y.  76;  33  »  Dunham  v.  Bower,  77  N.  Y.  73;  33 
Am.  Rep.  570.  Am.  Rep.  570. 

2  Davis  V.  Tallcot,  12  N.  Y.  184.  *  Blair  v.  Bartlett,  75  K  Y.  150;  31 
Matters  of  defense  cannot  be  litigated  Am.  Rep.  455;  Howell  v.  Goodrich,  69 
in  a  second  action,  because  not  pleaded  111.  556;  Haynes  v.  Ordway,  58  N.  H. 
in  the  first:  Hackv/orth  v.  Zollars,  30  167;  Goble  v.  Dillon,  86  lud.  327;  44 
Iowa   433.  Am.    Rep.  308.     Contra,   Re'^seqnie  v. 

Byers,  52  Wis.  650;  38  Am.  Rup.  775. 


513  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  283 

facie,  it  has  not  been  tried  or  passed  upon,"  and  is  not 
barred  unless  put  in  issue  by  the  answer/  A  judgment 
in  favor  of  the  vendor  of  property  for  the  purchase  price 
thereof  does  not  preclude  the  vendee  from  maintaining 
an  action  for  a  breach  of  a  covenant  of  warranty  or  of 
quality  made  by  the  vendor.^  But  the  defense  of  a  breach 
of  warranty  ^  or  any  other  defense  set  up  by  way  of  recoup- 
ment or  counterclaim,  and  not  withdrawn  from  the  con- 
sideration of  the  court,  and  adjudged  to  be  insufficient, 
thereby  becomes  res  judicata,  and  cannot  thereafter  sup- 
port an  independent  action.* 

Part  V.  —  PLEADINGS    TO    MAKE    FOPvMER    JUDGMENT    AVAIL- 
ABLE. 

§  283.  Necessity  of  Pleading.  —  In  all  these  cases, 
where  a  party  relying  upon  a  former  adjudication  as  an 
estoppel  had  no  opportunity  to  plead  it,  it  is  equally  a 
bar  as  though  an  opportunity  had  been  given  and  it  had 
been  pleaded.^  Thus  if  in  an  action  of  trespass  quare  clau- 
sum  the  defendant  pleads  title  in  a  third  person,  under 
wdiom  he  claims,  without  showing  how  such  title  was  ac- 
quired, nor  when  it  accrued,  the  plaintiff  may,  at  the  trial, 
give  in  evidence  an  award  against  the  title  of  such  third 
person,  without  pleading  it.''  Where  the  declaration  con- 
tains no  intimation  of  the  source  of  plaintiff's  title,  the 
defendant  is  not  bound  to  plead  an  estoppel,  nor  to  show 
that  the  title  claimed  by  plaintiff  proceeds  from  a  given 
source,  and  then  intercept  it  by  pleading  a  former  adju- 
dication.    And  if  an  estoppel  by  judgment  or  otherwise 

1  Foster  v.  Milliner,  50  Barb.  385;  *  South  &  N.  A.  R.  R.  Co.  v.  Hen- 
Davenport  V.  Hubbard,  46  Vt.  200;  14  lein,  56  Ala.  368;  Baker  v.  Stinchfield, 
Am.  Rep.  620;  Bascom  v.  Manning,  52     57  Me.  363. 

N.  H.  132.  MVixson   v.    Devine,    67   Cal.    341; 

2  Bodurtha  v.  Phelan,  13  Gray,  413;  Sheldon  v.  Patterson,  55  111.  507;  Dame 
McKnight  v.  Devlin,  52  N.  Y.  399;  11  v.  Wingate,  12  N.  H.  291;  Dows  v. 
Am.  Rep.  715;  Parker  i^.  Roberts,  63  McMieliael,  6  Paige,  139;  Howard  v. 
N.  H.  431;  Thoreson  r.  Minu.  H.  W.,  Mitchell,  14  Mass.  241;  McNair  v. 
29  Minn.  341;  Gilson  v.  Bingham,  43  O'Fallon,  8  Mo.  188;  Isaacs  v.  Clark, 
Vt.  410;  5  Am.  Rep.  289;  Davis  v.  12  Vt.  692;  36  Am.  Dec.  372;  Wood- 
Hedges,  L.  R.  6  Q.  B.  687.  house  v.  Williams,  3  Dev,  508;  Ward 

3  Earl  V.  Bull,  15  Cal.  421;  Timmons  v.  Ward,  22  N.  J.  L.  699. 

V.  Dunn,  4  Ohio  St.  680.  «  Shelton  v.  Alcox,  11  Conn.  240. 

JUDG.  L  — 33 


§  283  THE    JUDGMENT   AS    AN    ESTOPPEL.  514 

forms  part  of  the  muniment  of  either  party's  title,  he  is  no 
more  bound  to  set  it  forth  in  his  pleadings  than  he  is  to 
insert  therein  any  of  his  title  deeds. ^ 

When  the  authorities  speak  of  a  party  having  no  op- 
portunity to  plead  a  judgment,  they  use  language  well 
calculated  to  mislead,  and  to  indicate  that  whenever  it  is 
possible  for  one  relying  upon  an  estoppel  by  judgment  to 
plead  it,  he  must  do  so.  But  in  this  sense  the  opportunity 
to  plead  a  judgment  is  never  wanting,  unless  when  it  is 
rendered  pendente  lite,  and  the  court  refuses  to  permit  any 
supplemental  pleading.  What  the  courts  apparently  mean 
is,  that  when  a  claim  of  right  is  disclosed  in  the  pleadings, 
so  that  its  source  and  character  can  be  known  therefrom, 
and  the  party  claiming  the  benefit  of  a  judgment  can  see 
that  the  right  claimed  is  one  against  which  his  estoppel 
applies,  then  he  should  plead  it.  Both  by  the  common 
law  and  the  codes  of  procedure  in  force  in  many  of  the 
states,  if  a  plaintiff  sues  for  the  possession  of  property, 
real  or  personal,  without  disclosing  the  nature  or  source 
of  his  claim  of  title,  the  defendant  is  not  obliged  to  antici- 
pate and  understand  it,  and  plead  such  judgment  estoppels 
as  may  exist  against  it.  AVhen  it  is'disclosed  at  the  trial, 
he  may,  under  the  general  issue,  establish  any  judgment  or 
other  estoppel  which  may  exist  in  his  favor.^  Because  the 
pleadings  did  not  show  that  the  plaintiff  would  rely  uj^on 
any  title  against  which  the  estoppel  existed,  the  defendant 
is  said  to  have  had  no  opportunity  to  plead  it.  When, 
however,  the  plaintiff's  cause  of  action  is  so  set  forth  as 
to  advise  the  defendant  of  its  source  and  character,  and  he 
wishes  to  avail  himself  of  a  judgment  estoppel,  he  must 
specially  plead  it,  except  where  the  rules  of  the  common 
law  continue  in  force,  and  permit  it  to  be  received  in  evi- 
dence under  the  general  issue.^ 

'  Adams  v.   Barnes,   17  Mass.   365;        ^  State    v.    Comm'rs,    12    Nev.    17; 

Clink  V.  Thurston,  47  Cal.  29.  Norris  v.   Amos,  15  Ind.  365;  Fowler 

2  Grum  V.  Barney,  55  Cal.  254;  v.  Hait,  10  Johns.  Ill;  Greaves u  Mid- 
Jackson  V.  Lodge,  36  Cal.  38;  Flan-  dlebrooks,  59  Ga.  240;  Turley  v.  Tur- 
dreau  v.  Downey,  23  Cal.  358;  Young  ley,  85  Teiin.  251;  Planning  v.  Ins. 
r.  Rummell,  2  Hill,  481;  38  Am.  Dec.  Co.,  37  Ohio  St.  344;  41  Am.  Rep. 
594;  Miller  v,  Manici,  6  Hill,  131.  617. 


515  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  284 

§  284.  Effect  of  Judgment  as  Evidence  when  not  Spe- 
cially Pleaded.  —  According  to  the  practice  at  common  law, 
a  judgment,  though  not  pleaded  as  an  estoppel,  could  be 
given  in  evide'nce  under  the  general  issue.^  Upon  this 
point  there  is  no  doubt;  but  upon  the  question  of  what 
effect  is  to  be  given  to  it  wiien  so  put  in  evidence,  great 
contrariety  of  opinion  exists.  In  the  celebrated  case 
against  the  Duchess  of  Kingston,^  a  case  more  frequently 
cited,  we  think,  than  any  other  ever  decided  in  an  English 
court,  a  former  adjudication  is  spoken  of  as  being  "as  a 
plea,  a  bar;  and  as  evidence,  conclusive."  Whether  the 
judge  writing  the  opinion  in  this  case  understood  that  a 
former  adjudication  was  "as  evidence  conclusive,"  though 
not  pleaded  as  an  estoppel,  or  whether  he  intended  the 
language  employed  by  him  should  be  applicable  only  to 
those  cases  in  which  the  conclusive  effect  of  a  former  judg- 
ment was  invoked  by  the  pleadings,  is  unknown;  but  it 
is  probable  that  he  designed  merely  to  state  to  what 
extent  a  former  adjudication  might  prevail,  if  properly 
insisted  upon,  by  a  party  entitled  to  its  benefits,  and  that 
he  had  no  intention  of  pointing  out  the  means  essential 
to  securing  those  benefits.  However  this  may  be,  it  is 
certain  that  a  decided  preponderance  of  the  authorities 
in  England  sustains  the  view  that  the  record  of  a  former 
action,  if  given  in  evidence  under  the  general  issue,  when 
it  might  have  been  pleaded  as  a  bar,  "is  not  conclusive, 
but  is  a  mere  matter  of  argument  or  inference"  in  favor 
of  the  party  presenting  it.'  In  the  United  States,  how- 
ever, the  authority  of  the  English  decisions  on  this  sub- 
ject has  not  been  universally  respected.     Still,  there  are 

1  Welsh   V.    Lindo,  1  Cranch  C.  C.  Morewoocl,  '3   East,    346;    Vooght   v. 

508;  Young  v.  Rummell,  2  Hill,  478;  Winch,  2  Barn.  &  Aid.  6G'2;  Haniiaford 

38   Am.    Dec.   591;   Cook   v.   Field,  3  v.  Hiinn,  2  Car.  &  P.  148;  Magrath  v. 

Ala.  53;  36  Am.  Dec.  436;  Ronkert  v.  Hardy,    4   Bing.    N.    C.    782;    Doe   v. 

Elliott,  11  Lea,  235;  Fowlkcs  v.  State,  Huddart,  2  Cromp.  M.  &  R.  316;  Fe- 

14  Lea,  14;  Gilchrist  v.  Bale,  8  Watts,  versham    v.     Emerson,    11     Ex.     385; 

355;  34  Am.  Dec.  469;  Chitty's  Plead-  Dimes  v.  G.  J.  Canal  Co.,  9  Q.  B.  469, 

ing,  198.  517;  Hooper  v.  Hooper,  McClel.  &  Y. 

^  20  How.  St.  Tr.  478.  509. 

*  Chitty's  Pleading,  198;  Outram  v. 


§  284  THE    JUDGMENT    AS    AN    ESTOPPEL.  516 

a  number  of  cases  in  this  country  asserting  that  a  "judg- 
ment which  if  pleaded  would  have  been  a  perfect  bar  is, 
when  given  in  evidence  under  the  general  issue,  not  con- 
clusive on  the  jury,  but  only  evidence  to  be  weighed  by 
them,"'  "because  if  not  pleaded  the  matter  is  left  at  large, 
and  the  party  may  think  he  can  do  better  than  he  did 
before."^ 

In  New  York,  the  cases  are  hardly  consistent  wdth  one 
another.  In  Wright  v.  Butler,  6  Wend.  284,  21  Am.  Dec. 
323,  it  is  said:  "  In  actions  where  the  former  recovery  can 
be  set  up  in  pleading  by  way  of  estoppel,  the  party  must 
plead  it,  or  it  will  not  be  conclusive  upon  the  jury  in  the 
second  action;  but  in  actions  of  assumpsit,  etc.,  where  the 
party  has  no  opportunity  to  plead  the  former  verdict  as 
an  estoppel,  the  record  thereof  may  be  given  in  evidence, 
and  is  conclusive  and  binding  on  the  party,  the  court,  and 
the  jury  as  to  every  fact  decided  by  the  former  verdict." 
In  Wood  V.  Jackson,  8  Wend.  10,  35,  22  Am.  Dec.  603, 
Chancellor  Walworth  states  that  "there  is  a  certain  class 
of  cases  in  which  the  party  may  avail  himself  of  an  es- 
toppel by  pleading  the  same  in  bar  to  a  suit,  or  in  reply 
to  allegations  set  out  in  a  plea.  In  such  cases,  if  he  ne- 
glects to  make  the  objection  in  that  manner,  and  puts 
the  facts  directly  in  issue,  without  pleading  the  former 
verdict  or  decree  as  an  estoppel,  the  jury  may  find  accord- 
ing to  the  truth  of  the  case  on  the  issue.  But  tliispriiici- 
ple  is  only  applicable  to  those  cases  where  special  pleading  is 
required;  it  does  not  extend  to  actions  of  assumpsit,  where 
an  estoppel  as  a  former  recovery  or  bar  is  embraced  within 
and  may  be  given  in  evidence  under  the  general  issue. 
Neither  does  it  apply  to  cases  where  the  plaintiff's  title 
is  by  estoppel,  or  w^here  the  party  relying  upon  the  es- 
toppel had  no  opportunity  to  plead  the  same  specially  as 

1  Haller  v.  Pine,  8  Blackf.   175;  44  5  Watts,  103;  Smiths.  Elliott,  9  Pa.  St. 

Am.   Dec.   732;  Cleaton  v.  Chambliss,  345;  Adams  r,   Barnes,  17  Mass.   368; 

6  Rand.  86;  Town  v.  Nims,  5  N.   H.  Picquet  v.  McKay,  2  Blackf.  465;  Fer- 

259;    20   Am.    Dec.    578;    Howard   v.  guson  v.  Miller,  5  Ohio,  460. 

Mitchell,  14  Mass.  242;  Bartholomew  ■^  Redmond  v.   Coffin,   2    Dev.    Eq. 

t'.  Caudee,  14  Pick.  167;  Long  v.  Long,  445. 


517  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  284 

a  bar.  From  these  principles  it  necessarily  follows  that 
in  ejectment,  where  special  pleading  is  not  allowed,  the 
defendant,  in  support  of  his  possession,  may  give  in 
evidence  any  matter  which  would  have  operate(i  as  a  bar 
if  pleaded  by  him  by  way  of  an  estoppel  to  a  real  action." 
These  cases,  and  some  others  in  the  same  state,'  incline 
to  the  view  that  in  those  actions  where  a  judgment  can 
properly  be  given  in  evidence  under  the  general  issue,  its 
effect  is  conclusive,  unless  the  case  is  such  that  some 
special  pleading  is  allowed,  and,  taken  altogether,  they 
rather  affirm  than  deny  the  English  rule  upon  the  sub- 
ject. The  greater  number  of  the  American  cases,  however, 
repudiate  the  theory  that  a  former  adjudication  can  in 
any  event  be  properly  admitted  in  evidence  for  the  pur- 
pose of  determining  any  issue  in  the  second  action  by 
proving  how  the  same  issue  was  determined  in  the  first, 
without  being  absolutely  conclusive  so  far  as  it  is  applicable 
to  the  second  action.  The  judgment,  if  admitted  under 
the  pleadings,  must  be  received  as,  what  it  purports  to 
be,  a  final  determination  of  the  rights  of  the  parties. 
The  reasons  for  this  departure  from  English  precedents 
are  thus  forcibly  and  convincingly  stated  by  Kennedy,  J., 
in  the  case  of  3farsh  v.  Pier,  4  Rawle,  273,  26  Am.  Dec. 
131:  "The  maxim,  Nemo  debet  bis  vexari,  si  constat  curix 
quod  sit  pro  una  et  eadem  causa,  being  considered,  as  doubt- 
less it  w-as,  established  for  the  protection  and  benefit  of 
the  party,  he  may  therefore  waive  it;  and  unquestionably, 
so  far  as  he  is  individually  concerned,  there  can  be  no 
rational  objection  to  his  doing  so.  But  then  it  ought  to 
be  recollected  that  the  community  has  also  an  equal  in- 
terest  and  concern  in  the  matter,  on  account  of  its  peace 
and  quiet,  which  ought  not  to  be  disturbed  at  the  Avill 
and  pleasure  of  every  individual,  in  order  to  gratify  vin- 
dictive  and  litigious  feelings.  Hence  it  would  seem  to 
follow  that  wherever  on  the  trial  of  a  cause,  from  the 

'  Burt  V.  Sternburgh,  4   Cow.  559;     3  Cow.  120;  15  Am.  Dec.  256;  Miller 
15  Am.  Dec.  402;  Gardner  v.  Buckbee,     v.  Manici,  ti  Hill,  114. 


§  284  THE    JUDGMENT   AS    AN    ESTOPrEL.  518 

state  of  the  pleadings  iu  it,  the  record  of  a  judgment 
rendered  by  a  competent  tribunal  upon  the  merits  iu  a 
former  action  between  the  same  parties,  or  those  claiming 
under  them,  is  properly  given  in  evidence  to  the  jury,  that 
it  ought  to  be  considered  conclusivelv  binding  on  both 
court  and  jury,  and  to  preclude  all  further  inquiry  in  the 
cause;  otherwise  the  rule  or  maxim,  Expedit  rei  publica  ut 
sit  finis  litium,  which  is  as  old  as  the  law  itself,  and  a  part 
of  it,  will  be  exploded  and  entirely  disregarded.  But  if  it 
be  part  of  our  law,  and  it  seems  to  be  admitted  by  all  that 
it  is,  it  appears  to  me  that  the  court  and  jury  are  clearly 
bound  by  it,  and  not  at  liberty  to  find  against  such  former 
judgment.  A  contrary  doctrine,  as  it  seems  to  me,  sub- 
jects the  public  peace  and  quiet  to  the  will  or  neglect  of 
individuals,  and  prefers  the  gratification  of  a  litigious 
disposition  on  the  part  of  suitors  to  the  preservation  of 
tlie  public  tranquillity  and  happiness.  The  result,  among 
other  things,  would  be,  that  the  tribunals  of  the  state 
would  be  bound  to  give  their  time  and  attention  to  the 
trial  of  new  actions  for  the  same  causes,  tried  once  or 
oftener,  in  former  actions  between  the  same  parties  or 
privies,  without  any  limitation,  other  than  the  will  of  the 
parties  litigant,  to  the  great  delay  and  injury,  if  not  ex- 
clusion occasionally,  of  other  causes  which  never  have 
passed  in  rem  ji  dicatem.  The  effect  of  a  judgment  of  a 
court  having  jurisdiction  over  the  subject-matter  of  con- 
troversy between  the  parties,  even  as  an  estoppel,  is  very 
dilferent  from  an  estoppel  arising  from  the  act  of  the  party 
himself  in  making  a  deed  of  indenture,  etc.,  which  may 
or  may  not  be  enforced,  at  the  election  of  the  other  party; 
because  whatever  the  parties  may  have  done  by  compact, 
they  may  undo  by  the  same  means.  But  a  judgment  of 
a  proper  court,  being  the  sentence  or  conclusion  of  law 
upon  the  facts  contained  within  the  record,  puts  an  end 
to  all  further  litigation  on  account  of  the  same  matter, 
and  becomes  the  law  of  the  case,  which  cannot  be  changed 
or  altered,  even  by  consent  of  the  parties,  and  is  not  only 


519  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  284 

binding  upon  tliem,  but  upon  tlje  courts,  so  long  as  it 
shall  remain  in  force  and  unreversed."^ 

In  a  case  in  Maine,  the  suj)reme  court,  declining  to 
pass  upon  the  question,  because  it  was  not  then  material, 
stated  that  when  it  necessarily  arose,  the}'-  should  give  it 
a  very  careful  consideration  before  they  would  hold  "that 
the  conclusiveness  of  judgments,  and  the  consequent  peace 
of  the  community,  and  the  convenience  of  fresh  litigants 
shall  depend  upon  the  option  of  persons  litigiously  dis- 
posed, or  upon  the  accuracy  of  pleaders."^  Following 
this  intimation,  and,  it  is  to  be  presumed,  upon  careful 
consideration,  this  court  subsequently  decided  that  a  for- 
mer judgment  might  be  pleaded  as  an  estoppel,  or  given 
in  evidence  under  the  general  issue,  and  that  whichever 
course  was  pursued,  the  result  is  the  same.^  In  Illinois,  the 
courts  "do  not  sanction  the  technical  distinction  which 
makes  a  former  recovery  a  bar  only  when  pleaded  as  an 
estoppel";*  and  believe  that  the  rule  adopted  by  them 
"  is  doubtless  the  safer  rule,  and  the  one  alone  upon 
which  an  end  may  be  made  to  litigation,  and  unsuspect- 
ing innocence  and  right  may  repose  regardless  of  and 
undisturbed  by  technical  rules  of  pleading."^  And  the 
rule  generally  prevailing  upon  this  subject  in  the  United 
States  is,  that  any  judgment  or  decree,  whenever  properly 
in  evidence  before  the  court  or  jury,  is  as  conclusive  as  if 
specially  pleaded  as  a  bar.® 

Aside  from  considerations  of  public  policy,  which  ap- 
parently influenced  some  of  the  American  decisions  just 
cited,  they  seem  to  be  more  sustainable  than  the  line  of 

1  See  also  Cist  v.  Zeigler,  16  Serg.  &  550;  Shaffer  v.  Stonebraker,  4  Gill  & 
R.  282;  16  Am.  Dec.  573;  Betts  v.  J.  3-15;  Chamberlain  v.  Carlisle,  26  N. 
Starr,  5  Conn.  550;  13  Am.  Dec.  94.  H.  540;  King?'.  Chase,  15  N.  H.   9;  41 

2  Sturtevant  >\  Randall,  53  ]\Ie.  149.  Am.  Dec.    675;  Taylor  v.   Dustin,  43 

*  Walker  v.  Chase,  53  Me.  258.  N.  H.  493;  Bethlehem  v.  Watertown, 

*  Vallandingham  V.  Ryan,  17  111.25.     51   Conn.   490;  Offutt  v.  John,  8  Mo. 
"  Gray   v.  Gillilan,    15   111.   453;   60     120;  40  Am.  Dec.  125;  Garten  v.  Botts, 

Am.  Dec.  761.  73  Mo.  274;  Flandreau  v.  Downey,  23 

*  Warwick  v.  Underwood,  3  Head,  Cal.  354;  Westcott  v.  Edmunds,  68 
238;  75  Am.  Dec.  767;  Blodgett  v.  Pa.  St.  34;  Krekeler  v.  Ritter,  62 
Jordan,  6  Vt.  580;  George  v.  Gillespie,  N.  Y.  372;  Marston  v.  Swett,  66  N.  Y. 
1  Iowa,  421;  Beall  v.  Pearre,  12  Md.  206;  23  Am.  Rep.  43. 


8   284  THE    JUDGMENT    AS    AN    ESTOPPEL.  520 


decisions  with  which  they  are  in  conflict.     If  w^e  concede 
that  principles  founded  in  public  policy  do  not  prohibit 
the  parties  to  an  adjudication  from  reopening  by  mutual 
consent   matters   already  litigated,   and   from    indulging 
their  litigious  dispositions  to  an  unlimited  extent,  it  does 
not  follow  that  a  court  or  jury  should  be  at  liberty  to 
reinvestigate  matters  which  have  been  before  judicially 
investigated  and  determined,  when  that  determination  is 
properly  placed  before  such  court  or  jury  to  influence  the 
decision  in  the  second  action.     If  a  judgment  is  admis- 
sible in  any  case  under  the  general  issue,  its  admission 
ought  to  produce  some  well-defined  and  unavoidable  re- 
sult.   It  ought  to  be  received,as  conclusive  of  all  the  ques- 
tions settled  by  it,  or  rejected  altogether.     To  admit  it  in 
evidence,  with  the  understanding  that  it  may  be  regarded 
or  disregarded,  at  the  pleasure  of  the  court  or  of  the  jury, 
is  to  establish  a  rule  wdnch  authorizes  the  final  determi- 
nation of  the  rights  of  parties,  not  according  to  settled  and 
unvariable   principles,  but  at  the  mere  caprice  of  men. 
Every  law  and  every  interpretation  of  law  must  be  im- 
perfect and  unjust,  if,  when  applied  to  identical  facts,  it 
may  result  in  diametrical  judgments.     Under  the  decis- 
ions leaving  the  effect  of  a  former  recovery  to  the  caprice 
or  discretion  of  a  court  or  a  jury,  it  may  happen  that  of 
two  actions,  each  supported  by  the  same  evidence  and  in- 
volving the  same  issues,  a  part  of  the  evidence  in  each 
case  being  the  record  of  a  former  recovery,  one  action 
may  result  in  a  judgment  for  plaintiff"  and  the  other  in  a 
judgment   for  defendant,  and  yet  the  two  adverse  judg- 
ments be  equally  consistent  with  law.     If  the  failure  to 
plead  a  former  adjudication  in  bar  is  a  waiver  of  the  bene- 
fits accruing  under  it,  then  it  should  not  be  allowed  to  be 
placed  in  evidence  in  the  second  action.    But  why  should 
a  party  be  deemed  to  waive  a  matter  while  his  pleadings 
are  such  that  he  may  lawfully  present  it  in  evidence  be- 
fore the  jury  ?    Why  should  the  court  or  jury  be  at  liberty 
to  consider  a  matter  as  waived  which  is  included  in  the 


521  THE    JUDGMENT    AS    AN    ESTOPPEL.  §   284  a 

issues,  established  by  the  evidence,  and  relied  upon  at 
the  argument?  The  English  rule  is  inconsistent  with 
itself.  It  treats  a  former  adjudication  as  inconclusive  be- 
cause not  specially  pleaded,  but  permits  it  to  be  given  in 
evidence  in  order  that  the  jury  may,  if  they  choose,  give 
it  as  conclusive  an  effect  as  if  it  were  pleaded  specially. 
In  the  United  States  this  inconsistency  will,  in  time,  un- 
doubtedly disappear.  In  some  of  the  states  the  rules  of 
pleading  are  now  so  altered  as  to  require  a  former  adju- 
dication to  be  specially  alleged  by  the  party  relying  upon 
it,  when  he  has  an  opportunity  so  to  do,  before  it  can  be 
given  in  evidence.  Other  states  will  probably  adopt  the 
same  rule.  But  where  the  common-law  system  of  plead- 
ing is  retained,  a  judgment  >iH,  no  doubt,  at  some  not 
far  distant  day  of  the  future,  whenever  received  in  evi- 
dence, be  carried  into  effect  irrespective  of  the  question 
whether  it  was  admitted  under  the  general  issue  or  in 
support  of  a  special  plea. 

Part  VI.  — ACTIONS  TENDING  TO  CONTRADICT  FORMER  JUDG- 
MENT. 

§  284  a.  Defenses  and  Causes  of  Action  Once  Presented 
and  Considered  cannot  be  again  asserted  in  another  suit, 
without  a  violation  of  the  principles  of  res  judicata.  But 
the  obstinacy  with  which  litigants  press  their  claims  upon 
the  attention  of  courts  is  such  that  it  is  not  uncommon 
for  matters  once  fully  determined  to  be  again  made,  or  at 
least  attempted  to  be  made,  the  subjects  of  judicial  inquiry. 
Sometimes  the  circumstances  attending  a  former  decision 
are  such  as  to  render  the  application  of  the  law  of  res 
judicata  apparently  a  matter  of  great  injustice.  Hard 
cases  have  long  been  characterized  as  the  quicksands  of 
the  law.  Such  cases  are  quicksands  in  which  the  law  oires 
judicata  sometimes  sinks  so  far  that  the  judges  are  entirely 
unable  to  see  it,  or  even  to  remember  it.  Generally,  how- 
ever, such  is  not  the  case;  and  the  instances  are  compar- 
atively few  in  which  any  cause  of  action  or  any  matter  of 


§   285  THE    JUDGMENT    AS    AN    ESTOPPEL.  522 

defense  is  allowed  to  prevail  where  it  is  inconsistent  with 
the  facts  necessary  to  uphold  an}^  previous  adjudication 
between  the  same  parties.  Therefore  a  plaintiff  taking 
judgment  for  too  small  a  sum,  without  the  fraud  or  fault 
of  his  adversary,  cannot  maintain  a  subsequent  action  to 
recover  the  remainder;^  nor  can  a  defendant  avoid  the 
effect  of  a  judgment  against  him  by  showing  that  the  debt 
on  which  it  was  based  was  void  for  want  of  consideration, 
or  that  such  debt  had  been  merged  in  a  former  judgment,^ 
or  was  affected  by  usury; ^  nor  can  he  maintain  an  action 
to  recover  money  which  he  has  been  compelled  by  judg- 
ment to  pa}'-;''  nor  can  parties  to  a  judgment  under  which 
land  was  directed  to  be  sold  show  in  a  collateral  action 
that  it  belonged  to  them  and  was  ordered  sold  by  mistake.^ 
But  if  the  defendant  is  not  personally  served  with  process, 
and  has  no  notice  of  the  action,  and  moneys  belonging  to 
him  are  garnished  and  collected  therein,  he  may  maintain 
an  action  against  the  plaintiff  for  damages,  if  the  latter 
had  no  cause  of  action.^  But  one  who  had  knowledge  of 
an  action  against  him  and  an  opj)ortunity  to  defend  it 
cannot,  while  the  judgment  therein  remains  in  force,  re- 
cover damages  of  the  plaintiff  and  others  for  conspiring 
against  him  and  thereby  procuring  such  judgment.^ 

§  285.  Suits  for  Payments  not  Credited. — A  few  cases 
have  been  decided,  mainly,  if  not  exclusively,  in  Massa- 
chusetts, in  w^hich  causes  of  action  have  been  recognized 
and  enforced,  in  direct  opposition  to  a  former  judgment. 
In  the  first  of  these  cases,  a  note  was  placed  in  the  hands 
of  an  attorney  for  collection.  After  collecting  a  portion 
of  the  sum  due,  he  failed  to  give  the  proper  credit,  and 
thereafter  sued  and  recovered  judgment  for  the  full 
amount  of  the  note.     The  debtor  was  "permitted,  while 

1  Ewing  V.  McNairy,  20  Ohio  St.  316.  *  Davis  v.  Young,  36  La.  Ann.  374. 

2  Lewis  V.  Armstrong,  45  Ga.  131.  ^  Jones  v.  Coffey,  97  N.  C.  347. 

3  Heath  %  Frackletou,  20  Wis.  320;  «  Powell  v.  Geisendorff,  23  Kan.  538. 
91  Am.  Dec.  405;  Thatcher  v.  Gam-  '  Smith  i;.  Abbott,  40  Me.  442;  White 
mon,  12  Mass.  268;  Footman  v.  Stet-  v.  Merritt,  7  N.  Y.  352:  57  Am.  Dec. 
son,  32  Me.  17j  52  Am.  Dec.  634.  527. 


523  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  285 

tlie  original  judgment  remained  in  force,  to  maintain  an 
action  against  the  attorney  for  money  had  and  received, 
on  the  ground  that  when  the  attorney  received  the  pay- 
ment there  arose  an  implied  trust  that  he  would  credit  it 
on  the  note.^  In  a  later  case,  the  same  remedy  was  held 
to  be  available  in  behalf  of  a  debtor  against  whom,  after 
reception  of  a  partial  payment,  the  creditor  had  taken 
judgment  by  default  for  the  whole  sum.^  But  this  decision 
w^as  subsequently  overruled;^  and  we  apprehend  at  the 
present  time  the  recovery  of  judgment,  while  it  remains 
in  force,  must  everywhere  be  received  as  conclusive  that 
the  amount  recovered  remained  unpaid  at  the  date  of  the 
recovery.*  But>if  there  is  an  independent  agreement  that 
if  the  defendant  will  do  some  act,  the  plaintiff  will  accept 
a  less  sum  than  is  due,  in  full  satisfaction  of  a  note,  and 
the  plaintiff,  notwithstanding  such  agreement,  takes  judg- 
ment for  the  full  sum,  an  action  can  be  sustained  against 
him  for  his  breach  of  his  agreement/  A,  having  obtained 
judgment  against  B,  and  extended  his  execution  upon 
certain  real  estate,  thereby  became  a  tenant  in  common 
with  C.  A  then  sued  C  for  a  share  of  the  rents  and  profits 
of  the  estate,  and  obtained  a  judgment,  which  C  paid. 
After  this,  A's  judgment  against  B  was  reversed  on  writ 
of  error.  C,  while  the  judgment  against  him  was  still 
unaffected  by  any  proceeding  directed  against  it,  was  per- 
mitted to  recover  from  A  the  money  paid  to  obtain  its 
satisfaction,  on  the  ground  that,  from  circumstances  oc- 
curring since  the  payment  to  him,  A  had  no  right  to 
retain  the  money.^  AVhere  an  action  on  a  judgment  ren- 
dered in  Kentucky  was  brought  in  Texas,  the  defendant 
was  permitted  to  avoid  it  in  part  by  proving  that  during 
the  progress  of  the  former  suit  he  resided  in  the  last- 
named  state;  that  he  paid  a  part  of  the  demand  before 

'  Fowler  v.  Shearer,  7  Mass.  U.  *  Bird  v.  Smith,  34  Me.  63:  56  Am. 

■^  Roweu  Smith,  IG  Mass.  30G.     See  Dec.  635;  Ruff  v.  Doty,  26  S.  C.  173; 

Loring  v.  Mansfield,  17  Mass.  394.  4  Am.  St.  Rep.  709. 

^Fuller  V.   Shattuck.  13   Gray,  70;  "  Hunt  v.  Brown,  146  Mass.  2.)3. 

74  Am.  Dec.  622.  ^  Lazcll  v.  Miller,  15  Mass.  207. 


§   286  THE    JUDGMENT    AS    AN    ESTOPPEL.  524 

judgment  pendente  lite,  and  reposed  confidence  in  tlie 
plaintiff  in  Kentucky  to  make  the  proper  credits,  who  had 
failed  to  do  so/ 

§  286.  Suits  for  Credits  not  Allowed.  —  There  can  be 
no  doubt  that  these  decisions  are  in  direct  conflict  with 
the  true  rule  upon  the  subject;  that  they  were  induced  by 
yielding  to  the  hardship  of  the  particular  cases  in  which 
they  were  pronounced,  and  are  good  illustrations  of  the 
maxim  "that  hard  cases  make  bad  precedents."^  They 
are  altogether  inconsistent  with  avast  number  of  English 
and  American  authorities.^  ''It  is  clear  that  if  there  be 
a  bona  fide  legal  process  under  w^iich  money  is  recovered, 
although  not  actually  due,  it  cannot  be  recovered  back, 
inasmuch  as  there  must  be  some  end  to  litigation."^  A 
party  having  found  a  receipt  for  a  debt  which  he  had 
been  compelled  to  pay  by  judgment,  having  sought  to  re- 
cover back  the  money  paid.  Lord  Kenyon,  before  whom 
the  case  came,  said:  "I  am  afraid  of  such  a  precedent. 
If  this  action  could  be  maintained,  I  know  not  what  cause 
of  action  could  ever  be  at  rest.  After  recovery  by  process 
of  law,  there  would  be  no  security  for  any  person."  °  To 
a  similar  effect  is  the  opinion  in  a  recent  English  case 
denying  the  right  to  recover  back  part  of  a  debt  paid 
before  judgment,  but  which  plaintiff  did  not  credit.  "It 
is  not,"  said  the  court,  "competent  to  either  party  to  an 
action  to  aver  anything  either  expressing  or  importing  a 
contradiction  to  the  record  which,  while  it  stands,  is,  as 
between  them,  of  uncontrollable  verity."®  Substantially 
the  same  view  is  taken  in  nearly  all  of  the  United  States. 

1  Clay  ?'.  Clay,  13  Tex.  195.  an  action  for  the  price  of   such  arti- 

2  2  Smith's  Lead.  Cas.  667.  cles,  failed   to  prove  such   payments, 

*  Bobe's  Heirs  v.  Stickney,  36  Ala.  cannot  maintain  an  action  to  recover 
4S2;  State  v.  McBride,  76  Ala.  51 ;  Corey  back  the  amount  so  paid  by  him:  Wil- 
V.  Gale,  13  Vt.  638;  Kirklan  v.  Brown,     son  v.  Cameron,  1  Kerr,  542. 

4    Humph.    174;    40    Am.    Dec.    635;  *  Marriott  v.  Hampton,  7  Term  Rep. 

Davis  V.  Murphy,  2  Rich.  560;  45  Am.  269.      See  also  Phillips  v.  Hunter,  2 

Dec.  749.  H.  Black.  410. 

*  Duke  de  Cadaval  v.  Collins,  4  Ad.  "  Huffer  v.  Allen,  12  Jur.,  N  S., 
&   E.  867.     A  party  who  made  pay-  930;  L.  R.  2  Ex.  Cas.  15. 

ments  on  articles   sold,  and  who,  in 


525  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  287 

The  only  remedy  of  the  defendant  in  such  cases  is  by  ap- 
peal, new  trial,  proceedings  in  chancery,  or  in  the  nature 
of  an  audita  querela}  And  no  doubt  equity  would  not 
interfere  in  his  behalf,  unless  the  failure  to  present  his 
defense  of  payment  was  occasioned  by  accident,  surprise, 
or  mistake,  or  the  fraud  of  the  opposite  party,  unmixed 
with  any  contributory  fault  or  negligence  of  the  com- 
plainant.'' In  the  case  of  Binck  v.  Wood,  43  Barb.  315,  it 
was  decided  that  the  maker  of  a  promissory  note,  against 
whom  a  judgment  by  default  had  been  taken,  could  not 
recover  for  any  pa^'^ment  made  on  the  note  prior  to  the 
suit,  and  not  considered  as  a  credit  in  entering  judgment. 
The  authorities  on  the  subject  were  reviewed.  The  early 
cases  in  Massachusetts  were  inconsistent  with  the  case  of 
Loring  v.  Mansfield,  17  Mass.  39^,'^  and  that  has  been  over- 
ruled.* The  case  of  Smith  v.  Wilkes,  26  Barb.  463,  was 
overruled;  and  the  other  cases  in  New  York,  as  well  as 
those  in  the  other  states  and  in  England,  were  declared  to 
unanimously  sustain  the  view  that  while  a  judgment  is 
permitted  to  stand,  no  money  paid  upon  it  can  be  recov- 
ered. If,  after  the  rendition  of  a  judgment,  any  facts 
occur  making  it  clear  that  the  judgment  should  not  be 
enforced,  relief  may  be  given  in  equity,  or  an  action  for 
money  had  and  received  may  be  maintained.^  No  action 
can  be  successfully  prosecuted  to  recover  back  usurious 
interest  included  in  a  judgment  which  defendant  has  sat- 
isfied.« 

§  287.  Suits  for  Money  Paid  on  Judgments  where  De- 
fenses are  Concealed.  —  A  brought  an  action  against  B  to 
recover  the  insurance  on  a  lost  vessel,  and  secured  a  judg- 

'  Kirklan  v.  Brown,  4  Humph.  174;  »  xhey  surely  are  at  variance  \vith 

40  Am.  Dec.  635;  Corbet  v.  Evans,  25  Stephens  v.  Howe,  1'27  Mass.  1G4. 

Pa.  St.  310;  Tiltoii  r.  Gordon,  1  N.  H.  *  Fuller?;.  Shattuck,  13  Grayi  70;  74 

33;  Le  Grand  v.  Francisco,  3  Munf.  83;  Am.  Dec.  622. 

James  v.  Cavit,  2  Brev.  174;  Stephens  ^  Smith    v.    McCluskey,    45    Barb. 

V.  Howe,  127  Mass.    164;  Greenabaum  610. 

V.  Elliott,  2  Cent.  L.  J.  i'^0.  ^  Thatcher  r.  Gammon,  12  Mass.  268; 

2  Doyle  V.  Reilly,  18  Iowa,  108;  85  Footman   v.    Stetson,  32   Me.    17;   52 

Am.  Dec.  1S2.  Am.  Dec.  634. 


§   288  THE    JUDGMENT    AS    AN    ESTOPPEL.  526 

meat,  which  was  paid.  B  subsequently  commenced  suit 
to  recover  back  the  money  thus  paid,  on  the  ground  that 
the  vessel  was  already  lost  when  the  insurance  was  ef- 
fected; that  he  did  not  know  of  such  loss  when  the  former 
judgment  was  obtained,  and  that  such  loss  was  fraudu- 
lently concealed  by  A.  The  former  judgment  was  deter- 
mined to  be  a  bar,  because  "provision  being  made  by  the 
statute  for  a  review  of  judgments  within  a  time  thought 
reasonable  by  the  legislature,  it  must  be  supposed  that  a 
limit  was  intended  of  the  right  of  parties  to  complain  of 
the  wrong  done,"  and  because  no  reported  case  could  be 
found  "  in  which  the  merits  of  a  decided  cause  have  been 
allowed  to  be  re-examined  in  any  independent  action."  ^ 
If  an  agreement  is  made  to  extend  the  time  for  payment 
of  a  note,  this  constitutes  a  matter  of  defense,  which,  if 
not  presented,  is  lost.  No  action  can  therefore  be  sus- 
tained for  a  violation  of  the  agreement.  But  it  is  other- 
wise if  the  agreement  is  not  to  sue  for  a  limited  time.^ 
A  quantity  of  wheat  was  purchased,  and  a  nominal  sum 
paid  to  bind  the  bargain.  The  vendee  afterwards  sued 
the  vendor  for  non-^delivery,  and  recovered  judgment  for 
full  value  of  the  wheat.  The  vendee  then  sued  for  the 
price  agreed  to  be  paid  for  the  wheat.  The  action,  it  was 
decided,  could  not  be  maintained.  The  vendee  should 
have  insisted  on  a  proper  measure  of  damages.  Not  hav- 
ing done  so,  he  could  not  succeed  in  a  cross-action.^ 

§  288.  Actions  by  Third  Persons.  —  The  general  rule 
that  the  law  will  not  allow  money  paid  upon  legal  process 
to  be  recovered  back  does  not  apply  where  the  transaction 
is  res  inter  alios  acta.  The  assignee  of  a  bankrupt,  not 
being  in  privity  with  him,  may  recover  money  taken  from 
the  bankrupt,  under  execution,  after  his  act  of  bank- 
ruptcy.* 

1  Homer  v.    Fish,    1    Pick.   436;    11  '  Dey  w.  Dox,  9  Wend.  129;  24  Am. 

Am.     Dec.    218;     First    Presbyterian  Dec.  ll!7. 

Church  V.  New  Orleans,  30  La.  Ann.  *  FoUett     v.     Hoppe,     5     Com.    B. 

259;  31  Am.  Rep.  224.  243;    Phillips   v.    Hunter.    H.    Black. 

•^  Pearl  v.  Wells,  6  Wend.  291:  21  402. 
Am.  Dec.  328. 


527  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  289 

§  289.     Suits  for  Obtaining  Judgments  by  Fraud,  Con- 
spiracy, or  Perjury.  —  The  settled  policy  of  the  law  for- 
bidding that  a  matter  once  adjudicated  shall  be  again 
drawn  in  issue  while  the  former  adjudication  remains  in 
force  does  not  permit  the  prosecution  of  an  action  for 
obtaining  a  judgment  by  false  and  fraudulent  practices,' 
or  by  false  and  forged  evidence.^     Neither  can  a  party 
against  whom  judgment  has  been  recovered  sustain  an 
action  against  his  adversary  and  the  witnesses  for  dam- 
ages occasioned  by  their  conspiring  together  and  procur- 
ing   a   judgment    by   fraud   or   perjury,   as  long    as    the 
judgment    remains    in?    force    and    unreversed;    because 
the  charges  made  in  the  second  action  are  conclusively 
negatived  by  the  former  adjudication.^    Where  in  process 
of  foreign  attachment  a  judgment  has  been  entered,  dis- 
charging the  trustee  on  his  disclosure,  the  plaintiff  cannot 
sustain    an   action   on   the   case   against  the   trustee    for 
obtaining   his   discharge    by   falsehood  or  fraud   in   his 
disclosure,  and  by  fraudulent  collusion  with  the  principal 
defendant.     The  action  against  the  trustee  would,  if  it 
were  allowable,  involve  a  re-examination  of  the  questions 
determined   by  his    discharge  when    summoned  in  the 
former  suit."     The  defendant  in  a  judgment  of  foreclos- 
ure cannot  sustain   an  action  to  recover  on   account  of 
usurious  interest  included  in  the  judgment.     The  fact  of 
usury,  if  it  existed,   was   available   as   a  defense  in  the 
former  suit;  and  whether  pleaded  as  a  defense  or  not,  is 
conclusively  negatived  by  the  decree  of  foreclosure.^     In 
Kentucky,  money  coerced  from  defendant  through  a  judg- 
ment procured  by  fraud  may  be  recovered  back  from  him 
by  an  action  in  equity,  without  vacating  or  otherwise  set- 

1  Hillsborough  v.  Nichols,  46  N.  H,  Sedgewicke,  Cro.  Jac.  601;  Cunning- 

379-  Engstrom  v.  Sherburne,  137  Mass.  ham  v.  Brown,  IS  Vt.  123;  46  Am.  Dec. 

J53'  140;  Smith  v.  Lewis,  3  Johns.   157;  3 

2'Note  265,  by  C.  H.  &  E.,  to  Phil-  Am.  Dec.  469;  pout,  sec.  489. 

lipps  on  Evidence.  *  Lyford  v.  De   Merritt,  32  N.  H. 

3  Dunlap  V.  Glidden,  31  Me.  435;  52  234. 

Am.  Dec.  625,  citing  Damport?;.  Symp-  '  Heath  v.  Frackleton,  20  W  is.  610; 

sou,    Cro.    Eliz.    520,    and    Eyres    v.  91  Am.  Dec.  405. 


§§  289  a-291     the  judgment  as  an  estoppel.  528 

ting  aside  the  original  judgment.^  Generally,  except  in  a 
proceeding  to  vacate  a  judgment  for  fraud,  the  losing 
party  cannot  avoid  its  effect  by  urging  some  fraud  existing 
before  the  entry  of  the  judgment,  and  which,  had  he 
proved  it  at  the  trial,  ought  to  have  prevented  its  rendi- 
tion. If  there  was  any  fraud  in  the  creation  of  the  cause 
of  action,  that  fact  must  be  interposed  as  a  defense,  and 
if  not  so  interposed,  cannot  be  made  the  basis  of  an  in- 
dependent action.^  A  judgment  upon  a  note  therefore 
precludes  the  defendant  from  maintaining  a  subsequent 
action  to  cancel  the  note  for  fraud  in  its  procurement.* 

§  289  a.  A  judgment  for  plaintiff  in  an  action  for 
goods  sold  and  delivered  is  a  bar  to  a  subsequent  suit  by 
defendant  for  non-delivery  of  the  same  goods.* 

§  290.  Motion  for  Satisfaction.  — The  recovery  of  judg- 
ment being  conclusive  of  the  amount  due,  and  that  the 
plaintiff  is  the  person  to  whom  it  is  due,  a  motion  for  en- 
try of  satisfaction  on  the  ground  that  plaintiff  was  not 
the  real  party,  and  that  the  cause  of  action  belonged  to 
another  person,  to  w^hom  payment  has  been  made  since 
the  entry  of  judgment,  is  inconsistent  with  the  judgment. 
Hence  no  evidence  in  support  of  the  motion  can  be 
heard." 

§  291.  Failure  to  Give  Credit  as  a  Consideration  for  a 
Promise.  — While  the  defendant  cannot,  leaving  the  judg- 
ment in  force,  recover  of  plaintiff  a  sum  which  ought  to 
have  been  credited,  but  was  not,  it  seems  that  a  promise 
made  after  judgment  to  allow  credit  for  a  payment  made 
prior  to  judgment  may  be  proved  by  defendant  in  an  ac- 
tion against  him  on  the  judgment.  This  evidence  was 
considered  as  admissible  on  the  ground  that,  without 
directly  contradicting  the  judgment,  it  disclosed  a  state 

'  Ellis  V.  Kelly,  8  Bush,  621;  West  ^  Arnold  v.  Kyle,  8  Baxt.  319. 

V.  Kerby,  4  J.  J.  Marsh.  56.  *  Smith  v.  Kelly,  2  Hall,  217. 

■^  Lewis   V.  Nenzil,  38   Pa.   St.  222;  ^  Merviue     v.      Parker,      18     Ala. 

Roff  V.   Doty,  26  S.  C.    173;   Price  v.  241. 
Dewy,  6  Saw.  493, 


529  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  292 

of  facts  constituting  sufficient  consideration  for  the  prom- 
ise of  the  plaintiff  to  credit  the  amount,  and  that  such 
amount  was  to  be  treated  as  money  paid  on  the  judg- 
ment.' In  this  instance  a  consideration  for  the  promise 
to  credit  on  the  judgment  was  essential  to  the  defendant's 
partial  defense  to  the  second  action.  In  order  to  estab- 
lish this  consideration,  the  court  listened  to  evidence 
whose  only  object  was  to  show  that  the  former  judgment 
was  unjust,  and  that  not  to  take  advantage  of  its  unjust- 
ness  was  a  sufficient  moral  obligation  to  sustain  the  prom- 
ise. In  proving  this  consideration,  it  therefore  appears  to 
us  that  the  former  judgment  was  assailed,  and  the  prin- 
ciple of  res  judicata  violated. 

§  292.  Cases  in  Which  Recovery  Back  was  Permitted. 
—  Where  A  having  sued  B,  who  settled,  paying  three  dol- 
lars as  a  full  discharge  of  A's  claim,  who  thereupon  agreed 
to  dismiss  his  suit,  but  who,  instead  of  doing  so,  took 
judgment  for  twenty-five  dollars,  B  was  permitted  to  main- 
tain an  action  for  damages  in  not  dismissing  according 
to  his  agreement.^  No  doubt  that  although  the  second 
suit  is  predicated  upon  matters  which  might  have  been 
used  as  a  defense  in  the  first,  yet  if  it  involves  no  inquiry 
into  the  merits  of  the  former  judgment,  and  is  sustain- 
able on  grounds  entirely  independent  of  such  judgment, 
the  rule  inhibiting  relitigation  of  decided  issues  is  in  no 
danger  of  violation.  But  great  contrariety  of  opinion  is 
likely  to  become  manifest  in  deciding  whether  a  second 
suit  is  sustainable  on  grounds  not  involved  in  the  first, 
and  actions  will  no  doubt  occasionally  be  prosecuted  with 
success,  and  result  in  a  seeming  disregard  of  some  former 
adjudication.  Thus  in  Whitcomb  v.  Williams,  4  Pick. 
228,  the  plaintiff,  having  purchased  goods  of  the  defend- 
ants, paid  them  partly  in  cash  and  partly  by  his  note. 
He  afterwards  discovered  that  he  had  paid  for  more  tlian 
he  received;  but  nevertheless  he  suffered  judgment  to  be 

'  Thayer  v.  Mowry,  36  Me.  287.  *  Cobb  v.  Curtiss.  8  Johns.  470. 

JUDG.  L  — 34 


§  293  THE    JUDGMENT   AS    AN    ESTOPPEL.  630 

taken  against  him  on  tlie  note,  without  interposing  his 
defense  of  want  of  consideration.  He  tlien  sued  to  re- 
cover back  the  amount  paid  on  this  judgment,  and  pre- 
vailed, because,  in  the  opinion  of  the  court,  the  giving  of 
the  note  was  equivalent  to  payment  for  the  goods,  and  a 
cause  of  action  immediately  arose,  and  steered  clear  of  the 
note  and  the  judgment  thereon;  and  though  the  mistake 
might  have  been  corrected  in  the  suit  on  the  note,  yet 
that  the  plaintiff  had  a  right  of  election,  as  in  cases  of 
set-off. 

Part  VII.  — THE  EFFECT  OF  JUDGMENTS  IN  VARIOUS  ACTIONS. 

FiEST.  —  In   Actions  Involving  Title  to    or  the  Possession  of    Reai, 

Estate. 

§  293.  Distinction  between  Application  of  Res  Judicata 
to  Real  and  to  Personal  Actions.  —  The  high  regard  of  the 
people  among  whom  the  common  law  grew  into  being  for 
real  property  evinced  itself  in  a  vast  variety  of  ways  in 
the  different  branches  of  that  law,  and  in  none  of  those 
branches  did  it  make  itself  more  evident  than  in  that 
regulating  the  effect  of  former  adjudications.  The  pur- 
suit of  any  of  the  forms  of  personal  action  to  a  judgment 
on  the  merits  completely  barred  all  other  actions  based 
on  the  same  right  in  every  other  form.  But  that  the 
law  gave  "consecutive  remedies  for  injuries  to  real  estate 
is  recognized  in  all  the  books  that  treat  on  real  actions. 
It  is  stated  by  Booth  in  the  first  page  of  his  book.  He 
recommends  beginning  with  the  lower  rather  than  with 
the  higher  remedy;  for  he  says  'a  recovery  in  that  of 
the  lower  nature  will  not  be  a  bar  to  an  action  of  a  higher 
nature,  and  therefore  it  is  not  prudent  to  set  forth  a  writ 
of  right,  when  you  may  have  a  writ  of  entry.'"  He  cites 
Ferrer's  Case,  6  Coke,  7.  In  that  case,  it  was  decided  that 
there  was  a  difference  between  real  and  personal  actions; 
that  in  personal  actions  the  bar  is  perpetual,  for  the 
plaintiff  cannot  have  an  action  of  a  higher  nature;  but  if 
demandant  be  barred  in  a  real  action  by  judgment,  he 


531  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  293 

may  have  an  action  of  a  higher  nature  to  try  the  same 
right  again/  In  Yiner's  Abridgment  it  is  said  that  "a 
recovery  in  assize  is  no  bar  to  a  formedon.  A  recovery 
in  assize  is  a  bar  to  another  assize,  but  not  in  mort  d'an- 
cestor;  nor  is  a  recovery  in  mort  d'ancestor  a  bar  to  a  writ 
of  right. "^  Under  the  common-law  system  of  procedure, 
"a  judgment,  therefore,  in  each  species  of  action  is  final 
only  for  its  own  proper  purpose  and  object,  and  no  further. 
A  judgment  in  trespass  affirms  the  right  of  possession  to 
be,  as  between  plaintiff  and  defendant,  in  the  plaintiff  at 
the  time  the  trespass  was  committed.  In  a  real  action  it 
affirms  a  right  to  the  freehold  of  the  land  to  be  in  the 
demandant  at  the  time  of  the  writ  brought.  Each  species 
of  judgments,  from  one  in  an  action  of  trespass  to  one 
upon  a  writ  of  right,  is  equally  conclusive  upon  its  own 
subject-matter."^  "A  bar  in  a  real  action,  by  judgment 
on  demurrer,  confession,  verdict,  etc.,  is  a  bar  to  any 
other  action  of  the  like  nature  for  the  same  thing,  which 
is  the  case  likewise  in  personal  actions;  but  in  personal 
actions  the  bar  is  perpetual,  and  the  defendant  has  no 
remedy  but  by  writ  of  error  or  attaint.  In  real  actions, 
on  the  contrary,  if  a  man  is  barred  by  judgment  in  one 
action,  he  may  bring  another  of  a  higher  nature,  and  try 
the  same  right  again.  Thus  if  barred  in  an  assize  of 
novel  disseisin,  yet  upon  showing  a  descent  or  other  spe- 
cial matter,  he  may  have  an  assize  of  mort  d'ancestor,  a 
writ  of  aiel,  or  besael,  or  of  entry  sur  disseisin  to  his  an- 
cestor. So  if  a  man  is  barred  in  a  formedon  in  descender, 
yet  he  may  have  a  formedon  in  reverter  or  remainder,  for 
that  is  an  action  of  a  higher  nature,  and  in  which  the 
fee-simple  is  to  be  recovered.  But  a  recovery  in  assize  is 
a  bar  to  every  other  assize,  and  in  a  writ  of  entry  in 
nature  of  an  assize,  for  they  are  both  brought  upon  the 
plaintiff's  own  possession,  and  are  of   the   same   nature, 

'  ArnoW  v.  Arnokl,  17  Pick.  4.  Gray  v.  Gillilan,  15  111.  453;   GO  Airu 

»Vin.  Abr.,  tit.  Jiul>4iiieiit.  Q.  Uec.  7lil. 

'  Outraiu  V.  Morewood,  3  East,  346; 


§§  294,  295       THE    JUDGMENT    AS    AN    ESTOPPEL.  532 

and  a  judgment  in  a  writ  of  aiel  is  a  bar  in  a  writ  of  he- 
sael  or  cosinage,  for  they  are  both  ancestral  actions  of 
the  same  nature,"^ 

§  294.  Common  Recovery.  —  A  judgment  in  common 
recovery  is  as  conclusive  as  in  any  other  case.  It  cannot 
be  collaterally  assailed,  except  for  fraud,  or,  as  in  other 
real  actions,  because  the  defendant  was  not  a  tenant  of 
the  freehold.  If  there  is  a  proper  tenant  of  the  freehold, 
all  the  expectant  interests  are  involved  in  the  result.  The 
issue  in  tail  cannot  falsify  any  point  tried  by  the  action. 
The  judgment  is,  that  demandant  recover  his  title  to  the 
land.  No  one  claiming  under  the  title  represented  by 
the  tenant  in  prsecipe  can  avoid  this  judgment  otherwise 
than  by  writ  of  error.  If  there  was  no  such  judgment 
against  the  voucher  as  would  give  to  those  in  remainder 
the  nominal  recompense  which  belongs  to  the  form,  this 
does  not  avoid  the  judgment,  but  only  affects  its  regu- 
larity.^ 

§  295.  Ejectment  at  Common  Law.  —  At  common  law, 
a  judgment  in  ejectment  is  not,  in  any  case,  conclusive 
upon  the  title  of  either  of  the  parties.^  "  It  is  a  recovery 
of  the  possession  without  prejudice  to  the  right  as  it  may 
afterward  appear  even  between  the  same  parties."*  Its 
only  effect  "is  to  put  plaintiff  in  possession  according  to 
liis  right  and  title  in  the  premises."^  "It  is  alw^ays  in 
the  power  of  the  party  failing,  whether  claimant  or  de- 
fendant, to  bring  a  new  action.  The  structure  of  the 
record   also  renders  it  impossible  to  plead   the   former 

I  Roscoe     on    Real     Actions,    213,  276;  10  Am.  Dec.  143;  Moran  v.  Jes- 
citing  Com.  Dig.,  tit.  Action,  K,  1,  3;  sup,    15  U.  C.   Q.  B.   612;  Clubine  v. 
Robinson's  Case,  5  Rep.  32  b;  Cowper  McMullen,  11  U.  C.  Q.  B.  250. 
V.    Andrews,    Hob.    40;    Portington's  *  Atkins  ?>.  Horde,  1  Burr.  114;  Jack- 
Case,  10  Rep.  38  a.  son  v.  Dieffendorff,  3  Johns.  270.    This 

'^  Ransley  v.  Stott,   26  Pa.   St.    126;  rule   remains    in    force    in    Missouri: 

1  Rolle,  447;  3  Bulst.  247.  Avery  v.  Fitzgerald,  94  Mo.  207;  Spen- 

3  Mitchell  V.  Robertson,  15  Ala.  412;  cer  v.  O'Neill,   100  Mo.  49;  Sulton  v. 

Hinton   v.    McNeil,    5   Ohio,  509;   24  Dameron,    100   Mo.    141;   Kinimel   v. 

Am.    Dec.   315;  Pollard  v.   Baylors,  6  Benna,  70  Mo.  52. 

Munf.  433;  Holmes  v.  Carondelet,  38  ^  Minke  v.  McNamee,  30  Md.  294; 

Mo.  551;  Smith  v.  Sherwood,  4  Conn.  96  Am.  Dec.  677. 


533  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  296 

recovery  in  bar  to  the  second  ejectment;  for  the  plaintiff 
m  the  sui+  is  only  a  fictitious  person,  and  as  the  demise 
term,  etc.,  may  be  hiid  in  many  different  ways,  it  cannot 
be  made  to  appear  that  the  second  ejectment  is  brought 
upon  the  same  title  as  the  first."  ^     Several  verdicts  in 
favor  of  the  same  party,  and  his  adversary's  accepting  a 
lease  and  promising  to  give  no  more  trouble,  are  not  con- 
clusive against  the  latter.^     But,  notwithstanding  its  in- 
conclusive effect,  a  judgment  in  ejectment  seems  to  have, 
even  at  common  law,  been  admissible  in  evidence  in  a 
second   ejectment,  where  the   parties  were    substantially 
the  same  as  in  the  first,  and  to  have  been  allowed  to  go 
to  the  jury  in  the  second  action,  to  be  by  them  treated  as 
persuasive,  though  not  conclusive,  evidence  of  the  facts 
upon  which  it  was  based.^     "The  inconclusiveness  of  a 
verdict  and  judgment  in  ejectment  is  due  to  the  form  of 
the  action,  not  to  the  character  of  the  subject-matter  of 
the  controversy.     There  is  no  charm  about  land,  as  land, 
which  relieves  it  from  the  operation  of  the  general  rule 
that  a  judgment  between  same  parties  or  their  privies 
directly  upon  the  same  matter  is  the  end  of  the  contro- 
versy.    That  it  is  an  estoppel  against  future  litigation  of 
the  same  question  is  evident  from  the  fact  that  a  fine,  a 
common  recovery,  a  simple  judgment  on  a  writ  of  right, 
and   indeed  judgments   in   any  real  action,  have  always 
been  held  conclusive."  *     In  some  portions  of  the  United 
States  the  rules  regarding  actions  of  ejectment  have  been 
so  far  modified  that  two  judgments  to  the  same  effect  are 
conclusive  upon  the  title,  though  one  alone  is  not.^ 

§  296.     In  Ejectment  upon  Confession.  —  In  Kentucky, 
the    fact   that  a  judgment   in    ejectment   was    rendered 

1  Adams  on  Ejectment,  351.  *  Stevens  v.  Hughes,  31  Pa^  St.  .3811 

^  Richardson  v.  Stewart,  2  Serg.  &  ^  Boyle    v.    Wallace     81    Ala.   |.  2; 

■n    oj  Drexel  v.  Man,  2  ra.  ht.  271;  4-1  Am, 

■3  D^e  V.  Seaton,  1  Tyrw.  &  G.  19;  2  Uec.  ]95;  Kinter  v.  Jenks,  43  Pa.  St. 

rrnTYin  M  <t  R  728- Writiht  w.  Tatham,  445;  Woolston  s    Appeal,    51    1  •»•    -^t. 

^Ad  ^&  E  3    Bull  N.  Pr232  b;  Doe-.!  452;  Baze  v.  Arper,  G  Minn.  220;  Bnt- 

Wri<^ht,   10  Ad.  &  E.  7(53;  Thompson  ton  r.  Thornton    112  U    S   o20;  Jones 

V.  Hill,  31  U.  C.  Q.  B.  375.  v.  De  Graflcuned,  00  Ala.  14a. 


§§   297,  298       THE    JUDGMENT    AS    AN    ESTOPPEL.  534 

upon  confession  does  not  make  it  more  conclusive  than 
if  it  were  based  on  the  verdict  of  a  jury;^  but  in  Pennsyl- 
vania the  rule  is  otherwise.  A  judgment  by  confession 
in  ejectment  is  there  "treated  as  a  solemn  judicial  con- 
fession of  want  of  title,  —  a  total  and  unconditional  surren- 
der of  the  field  of  controversy,  —  and,  as  such,  conclusive 
forever  on  the  defendant  and  all  his  privies."^  In  Illi- 
nois, a  judgment  in  ejectment,  when  the  defendant  was 
defaulted,  does  not  become  conclusive  until  two  years 
after  its  entry.^ 

§  297.  In  Actions  for  Mesne  Profits.  —  In  actions  for 
mesne  profits,  a  judgment  in  ejectment  is,  as  against  de- 
fendant, conclusive  evidence  of  title  in  the  lessor  of  the 
plaintifi"  from  the  time  of  the  demise  laid  in  the  declara- 
tion, and  that  he  was  not  in  possession  at  the  institution 
of  his  ejectment  suit.*  Beyond  the  time  laid  in  the 
demise  it  proves  nothing,  because  beyond  that  time  the 
plaintiff  alleged  nothing;^  nor  does  it  prove  that  the  plain- 
tiff was  not  in  possession  between  the  date  laid  in  the 
demise  and  the  commencement  of  the  action,^ 

§  298.  Payment  of  Costs.  —  The  action  of  ejectment  is 
said  to  be  peculiarly  a  creation  of  the  court.  The  court 
will  so  far  control  its  creation  as  to  stay  proceedings  in 
the  second  suit,  if  the  costs  resulting  from  failure  in  a 
former  suit  remain  unpaid,^  if  it  appear  that  the  second 

1  Botts  V.  Shields,  3  Litt.  32.  Doe  v.   Langs,    9  U.    C.    Q.   B.  676; 

2  Secrist  v.  Zimmerman,  55  Pa.  St.  Thompson  v.  Hall,  31  U.  C.  Q.  B.  376; 
446.  West  V.  Hughes,   1  Har.  &  J.  574;  2 

3  Cadwallader  v.  Harris,  76  HI.  Am.  Dec.  539;  Crockett  r.  Lashbrook, 
372.  5  T.   B.   Mon.   5^1;    17  Am.    Dec.   98; 

*  Graves  ?;.  Joice,  5  Cow.  261;  Leon  Hinton  v.  McNeil,  5  Ohio,  509;  24 
V.  Burtis,  5  Cow.  408;  Postens  v.  Am.  Dec.  315.  A  judgment  by  default 
Postesn,  3  Watts  &  S.  182;  38  Am.  in  ejectment  is,  in  England,  good  evi- 
Dec.  752;  Brothers  v.  Hurdle,  lO-Ired,  dence  of  title  for  plaintiff  in  an  action 
490;  51  Am.  Dec.  400;  Shumake  v.  for  mesne  profits;  but  is  not  even 
Nelms,  25  Ala.  126;  Brewer  v.  Beck-  prima  facie  evidence  that  defendant 
with,  35  Miss.  467.  w-as  in  possession:   Pearse  v.  Coaker, 

*  Shumake  v.  Nelms's  Adm'r,  25  Ala.  L.  R.  4  Ex.  92. 

126;  note  270,  by  C.  H.  &  E.,  to  Phil-  ^  West  v.  Hughes,  1  Har.  &  J.  574; 

lipps  on  Evidence;  Bunthi  v.  Duchane,  2  Am.  Dec.  539. 

1  Rlackf.  56;  Aslin  v.  Parkin,  2  Burr.  '  Dauvers   v.    Morgan,   17   Com.  B. 

666;  Dewey   v.  Osboru,  4   Cow.  329;  530. 


535  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  299 

action  turns  on  tlie  same  question  of  title  as  tlie  first, 
though  a  different  parcel  of  land  be  claimed  and  a  differ- 
ent person  be  made  defendant.'  This  seems  to  be  the 
only  power  which  the  courts  have  reserved  by  which,  if 
need  be,  to  prevent  this,  their  creation,  from  perpetually 
harassing  the  occupants  of  real  estate  by  the  repeated 
assertion  of  pretensions  whose  worthless  character  has 
been  judicially  ascertained, 

§  299.  Ejectment  Modified  by  Statutes. — Wherever 
the  common-law  form  of  ejectment  is  abolished,  and  the 
action  is  commenced  by  the  parties  in  their  own  names,  the 
judgment  is  an  estoppel,  —  a  valid  bar  to  any  subsequent 
action,  —  unless  the  privilege  of  commencing  another  is 
given  by  statute.'^  Technically  and  substantially,  under 
the  form  of  procedure  in  which  the  action  to  recover  real 
estate  is  conducted  in  the  name  of  the  real  claimant,  who 
need  not  depend  for  his  success  on  anything  but  his  title, 
we  no  longer  have  an  action  of  ejectment.  "  We  can  see 
no  reason  why  a  judgment  upon  a  matter  in  regard  to 
realty,  once  put  in  issue,  litigated,  and  determined,  whether 
it  be  title,  right  to  present  possession,  or  something  else, 
should  not  be  conclusive,  as  well  as  when  it  relates  to  per- 
sonalty. No  principle  of  the  common  law  would  be  vio- 
lated by  such  a  result.  Nor  would  it  be  contrary  to  any 
principle  of  public  policy.  The  form  of  the  complaint  in 
an  action  to  recover  real  estate  may  be  adapted  to  the 
estate  sought  to  be  recovered,  and  the  facts  desired  to  be 
put  in  issue."^     A  judgment  in  ejectment,  like  every  other 

1  Doe  on  Demise;  Brayne  v.  Bather,  ^  Caperton  v.  Schmidt,  26  Cal.  479; 
12  Q   B  941  85  Am.  Dec.  187;  Dawley  r.  Brown,  79 

2  Sturdy?;!  Jackaway,  4  Wall.  174;  N.  Y.  390;  Bouger  v.  Hol)l)s,  67  111. 
Miles  V.  Caldwell,  2  Wall.  35;  Beebe  592;  Johnson  v.  Pate,  90  N.  C.  3.S4; 
V  Elliott  4  Barb.  457;  Sheridan  v.  Troutman  v.  Vernon,  1  Bush,  482; 
Andrews  3  Lans  129;  Campbell  v.  Benton  v.  Benton,  95  N.  C.  559;  Sobey 
Hall  16  N  Y  575;  Castle  v.  Noyes,  v.  Beiler,  28  Iowa,  323;  thll  v.  Cooper, 
14  N  Y  .3''9-  Fitch  v.  Cornell,  1  Saw.  8  Or.  254;  Allen  v.  Salinger,  103  N.  C. 
156;  betgen  v.  Ross,  54  111.  79;  Doyle  14;  Sims  v.  Sims,  ^^J^^^-]~\'  ^l>''^'' 
V.  Hallam,  21  Minn.  515;  Parks  v.  v.  Stamps,  73  Ga.  209;  54  Am.  Hep. 
Moore,  13  Vt.  183;  .37  Am.  Dec.  589;  870. 

Hodges  V.  Eddy,  52  Vt.  434. 


§   299  THE    JUDGMENT    AS    AN    ESTOPPEL.  636 

final  adjudication,  bars  only  the  causes  of  action  and  mat- 
ters of  defense  put  in  issue  in  the  former  suit,  or  which, 
if  not  put  in  issue,  were  of  such  a  nature  that  the  neglect 
to  put  them  in  issue  was  an  irrevocable  confession  of 
their  non-existence.^  It  is  not  the  fact  that  the  land 
sought  to  be  recovered  in  two  actions  is  the  same  that 
creates  an  estoppel,  but  the  fact  that  the  issues  are  the 
same.^  If  the  plaintiff  relies  upon  a  lease  executed  to  him 
by  the  defendant,  and  which  in  the  present  action  estops 
the  defendant  from  denying  the  title  of  his  landlord,  the 
judgment  should  leave  the  defendant  free,  after  yielding 
up  possession,  to  contest  his  landlord's  title  in  another 
action.^  Where  the  owner  of  land  is  by  law  entitled  to  all 
crops  growing  thereon,  his  recovery  in  ejectment  because 
it  is  conclusive  that  he  is  the  owner  of  the  land  is  equally 
conclusive  of  his  ownership  of  the  crops  thereon  growing.* 
Even  where  the  common-law  rules  respecting  the  action  of 
ejectment  and  the  inconclusiveness  of  judgments  therein 
prevail,  if  an  action  is  brought  upon  an  equitable  title,  in 
a  state  in  which  such  action  is  sustainable,  it  has  the  char- 
acter of  a  suit  in  equity,  and  the  judgment  entered  therein 
is  conclusive.^  So  if,  to  defeat  an  action  of  ejectment,  an 
equitable  defense  is  interposed,  and  the  court  decides  it 
not  to  be  well  founded,  the  defendant  is  estopped  from 
maintaining  an  independent  suit  founded  on  the  same 
equity.^  If  the  plaintiff  sues  for  two  parcels  of  land  and 
recovers  but  one,  or  for  a  large  tract  and  recovers  but  a 
part  thereof,  the  judgment,  though  silent  as  to  the  part 
not  recovered,  is  nevertheless  conclusive  that  the  plaintiff 
was  not  entitled  thereto.''  No  doubt  the  parties  in  their 
pleadings  may  limit  their  controversy  to  a  particular 
title.®     But  in  the  absence  of  any  limitation  made  by  the 

'  Foster  v.  Evans,  51  Mo.  39.  Winpenny  v.  Winpeimy,    92   Pa.  St. 

2  Dawley  v.  Brown,  79  N.  Y.  390.  440. 

3  Benton     v.     Benton,     95     N.     C.  « Chouteau   v.    Gibson,  76   Mo.   38; 
559.  Preston  v.  Rickets,  91  Mo.  320. 

*  Craig  V.  Watson,  68  Ga.  114.  '  Thompson  v.  McKay,  41  Cal.  221  j 

*  Seitzitiger  v.   Ridgewav,  8  Watts,     Woodin  v.  demons,  32  Iowa,  280. 
496;  Taylor  v.  Abbott,  41  Pa.  St.  352;         «  Marshall  v.  Shaf ter,  32  Cal.  176. 


537  THE    JUDGMENT    AS    AN    ESTOPPEL.       §§  300,   301 

pleadings,  the  defendant  must,  at  his  peril,  protect  all  his 
rights  in  the  land,  or  connected  therewith.  If,  after 
erecting  buildings,  he  suffers  judgment  to  be  taken  against 
him  for  the  possession  of  the  land,  he  cannot  surrender 
possession  and  afterward  maintain  an  action  against  the 
plaintiff  for  the  value  of  the  buildings.^ 

§  300.  What  Pleadings  Involve  Title.  —  If  a  complaint 
alleges  that  plaintiff  was  at  a  specified  time  possessed 
of  lands,  and  that  he  claims  such  lands  in  fee-simple  ab- 
solute, and  that  being  so  possessed  thereof,  and  being  so 
the  owner  thereof,  the  defendant  entered  and  ejected  plain- 
tiff, etc.,  it  tenders  an  issue  of  title.  If  to  this  complaint  the 
defendant  makes  a  general  denial,  a  subsequent  judgment 
for  defendant  is  conclusive  upon  all  the  title  held  by  the 
plaintiff  at  that  time.^  "  It  must  be  admitted  by  every  one 
that  a  recovery  operates  as  an  estoppel  to  this  extent,  to 
preclude  the  losing  party  from  denying  that  as  to  him 
the  prevailing  party  was  at  the  time  of  the  rendition  of 
the  judgment  entitled  to  the  possession.  It  would  seem 
necessiarily  to  follow  that,  in  order  to  avoid  the  estoppel, 
the  losing  party  must  show  other  right  to  possession  than 
that  which  he  had  when  the  estoppel  was  created.  He  is 
bound  to  show  such  right,  because  his  former  claim  of 
right  was  determined  by  the  recovery."' 

§  301.  Issues  Concluded  by  Judgment  in  Ejectment. — 
Under  the  code,  a  judgment  in  ejectment  is  conclusive  of 
but  two  points:  the  right  of  possession  in  plaintiff  at  the 
commencement  of  the  suit,  and  the  occupation  of  the 
premises  by  the  defendant  at  the  same  date.  At  common 
law,  the  judgment  w^as,  in  an  action  for  mesne  profits,  con- 
clusive of  title  at  the  time  of  the  alleged  demise.  Under 
our  practice  the  rule  is  different,  because  the  plaintiff  is 
entitled  to  recover  upon  proof  of  right  to  the  possession 
at  the  commencement  of  his  suit;  and  an  allegation  on 

'  Doak  V.  Wiswell,  .33  Me.  355.  *  Marshall  v.  Shafter,  32  Cal.  176. 

'  Marshall  v.  Shafter,  32  Cal.  176. 


§§  302,  302  a     the  judgment  as  an  estoppel.  538 

his  part  in  relation  to  the  date  of  the  acquisition  of  his 
title  is  immaterial/ 

§  302.  Avoiding  Effect  of  Former  Judgment. — When- 
ever, in  an  action  for  possession  of  realty,  the  question  of 
title  is  put  in  issue  by  the  pleadings,  the  judgment  prima 
facie  constitutes  an  estoppel  to  the  assertion  of  any  title 
which  existed  in  the  losing  party  at  the  time  of  the  former 
suit.  To  avoid  this  estoppel  he  may  show  that  by  reason 
of  some  lease  or  license  his  title  could  not  be  asserted  in 
the  former  suit.'^  Judgment  in  ejectment  never  affects 
after-acquired  title.  Therefore  a  defeated  party  may  in 
any  subsequent  suit  show,  by  parol  or  otherwise,  that  the 
right  to  the  possession  has  come  to  him  since  the  former 
suit.*  Upon  reasoning  not  adapted  to  our  comprehension, 
the  supreme  court  of  Vermont  determining  the  effect  of  a 
judgment  in  ejectment,  wherein  the  plaintiff  recovered  a 
part  only  of  the  land  sued  for,  held  that  as  to  the  lands 
not  recovered  this  was  a  conclusive  adjudication  that  the 
plaintiff  had  no  title  thereto,  and  that  he  could  not  avoid 
the  effect  of  the  judgment  by  showing  that  the  defendant 
at  the  commencement  of  the  former  action  was  not  in 
possession  of  any  part  of  the  land  which  the  plaintiff 
therein  failed  to  recover  in  the  first  action.*  If,  as  the 
plaintiff  claimed,  the  defendant  was  not  in  possession  of 
part  of  the  premises  when  the  first  action  was  brought, 
that  fact  constituted  a  perfect  defense,  and  one  which 
must  have  been  sustained  without  considering  the  ques- 
tion of  title;  and  the  judgment  ought  not  to  have  pro- 
tected the  defendant  when  he  subsequently  for  the  first 
time  ousted  the  plaintiff. 

§  302  a.  Judgments  in  Actions  of  Forcible  Entry  and 
Unlawful  Detainer  are,  to  the  same  extent  as  judgments 
in  other  actions,  conclusive  upon  the  questions  within  the 

J  Yount  V.  Howell,  14  Cal.  465;  Sat-  »  Mahoney  v.  Van  Winkle,  33  Cal. 

terlee  v.  Bliss,  36  Cal.  489.  448;  Emerson  v.  Sansome,  41  Cal.  552. 

« Sherman    v.    Dilley,    3    Nev.    21;  See  post,  sec.  329. 

Chase  v.  Irvin,  87  Pa.  St.  286.  *  Hodges  v.  Eddy,  62  Vt.  434. 


539  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  303 

issues,  and  determined  by  the  court  or  confessed  by  the 
parties.^  If  a  judgment  is  in  favor  of  a  plaintiff  who  sues 
as  landlord  to  recover  of  defendants  for  holding  over,  such 
judgment  is  conclusive  against  them  of  the  existence  of 
the  lease  and  their  unlawful  holding  over.^  And  where 
defendant  claims  to  have  constructive  possession  of  tract 
A  by  reason  of  his  occupation  of  tract  B,  and  judgment 
for  the  possession  of  the  latter  tract  has  been  recovered 
against  him  in  an  action  of  forcible  entry,  such  judgment 
is  conclusive  evidence  against  him  that  his  entry  on  tract 
B  "was  a  forcible  intrusion  on  plaintiff's  possession,  and 
when  restitution  was  made  under  the  judgment,  the  statu 
quo  was  restored,  and  the  defendant's  possession"  of  the 
tract  B  "became  from  the  beginning  the  possession  of 
the  plaintiff,  and  all  constructive  possession  arising  out 
of  the  actual  possession  under  color  of  title  was  thereby 
extinguished."'  So  when,  to  maintain  an  action  of  forci- 
ble entry  and  detainer,  the  plaintiff  must  establish  an 
actual  prior  possession,  a  judgment  in  his  favor  is  conclu- 
sive that  he  had  had  such  possession.*  The  title  to  the 
property  is  never  in  issue  in  these  actions;  and  therefore 
the  judgment,  whether  for  plaintiff  or  defendant,  cannot 
affect  the  title.^  The  failure  of  plaintiff  to  recover  in  such 
an  action  is  a  bar  to  his  subsequent  recovery  upon  the 
same  cause  of  action;  but  does  not  preclude  him  from  sus- 
taining the  second  suit,  if  he  can  show  that  from  failure  to 
give  the  requisite  notice,  or  from  some  other  cause  since 
removed,  the  former  judgment  was  rendered  against  him.® 

§  303.     Judgments  of  Foreclosure.  —  If,  under  the  stat- 
utes of  a  state,  proceedings  for  the  foreclosure  of  a  mort- 

iDale   V.    Doddridge,  9    Neb.    13S;  428;   Casey  v.  McFalls,  3  Sneed.  115; 

Beeler   v.   Cardwell,   29    Mo.    72;    77  lliverside  Co.  v.  Towiisend,  120  111.  9; 

Am.    Dec,  550;    Haivie  v.  Turner,  46  Equitable  Trust  Co.  v.  Fislier,  JOii  111. 

Mo.    444;    Mitchell  v.  Davis,  23  Cal.  189.     In  Kansas,  the  statute  specially 

381.  provides  that  judgments  in  actions  of 

^  Norwood  V.  Kirby,  70  Ala.  397.  forcil)le  entry  and  unlawful    detainer 

*  Bradley  v.  W«st,  08  Mo.  72.  "shall  not  be  a  bar  to  any  afteraction 

*  Brady  v.  Huff,  75  Ala.  80.  brought   by  either  party  ":    Waits  v. 
^Mattox  V.  Helm,  5  Litt.   185;    15  Teeters,  36  Kan.  604. 

Am.  Dec.  64;  Fish  v.  Benson,  71  Cal.         *  Merrin  v.  Lewis,  90  HI.  505. 


§  303  THE    JUDGMENT    AS    AN    ESTOPPEL.  540 

gage  may  be  and  are  ex  parte,  the  judgment  entered 
therein  cannot  be  condnsive,  where  there  was  no  defense, 
for  the  obvious  reason  that  there  is  no  person,  by  proper 
process,  brought  within  the  jurisdiction  of  the  court,^ 
Where,  however,  proper  parties  are  brought  before  the 
court,  a  judgment  either  foreclosing  or  refusing  to  fore- 
close a  mortgage  or  other  lien  is  conclusive  of  all  the 
issues  necessarily  determined  by  it.  The  ordering  of  a 
sale  is  conclusive  of  the  existence  of  the  debt  and  of  tlie 
lien,^  and  when  followed  by  a  sale,  a  conveyance  pursu- 
ant to  such  sale  is,  as  against  the  parties  to  the  action, 
equivalent  to  a  conveyance  made  by  the  mortgagor,  at  the 
moment  when  the  lien  was  created/  The  mortgagor  and 
the  other  parties  to  the  action  cannot,  after  judgment 
against  them,  be  permitted  to  show  that  before  judgment 
the  mortgage  debt  h'kd  been  paid,  or  that  the  decree  was 
taken  contrary  to  agreement,*  or  that  the  mortgage  was 
not  supported  by  a  proper  or  sufficient  consideration.® 
The  judgment  in  a  writ  of  entry  to  foreclose  a  mortgage 
is  conclusive  on  all  the  title  held  by  defendant  at  the  date 
of  the  judgment.^  If  the  defendant  in  a  foreclosure  suit 
answers,  claiming  the  whole  equity  of  redemption,  and 
the  complainant  makes  no  replication,  the  decree  will  be 
conclusive  on  the  latter,  so  that  he  cannot  afterwards  set 
np  other  claims.'^  Where  a  bill  was  opposed  by  the  widow 
of  a  deceased  mortgagor  on  the  ground  that  the  prop- 
erty mortgaged  was  hers,  and  the  court  found  that  the 
husband  had  a  life  estate,  and  directed  such  estate  to  be 
sold,  it  was  held  that  the  rights  of  the  mortgagees  were 
thereby  confined  to  the  life  estate,  and  that  they  could 
not,  in  any  subsequent  action,  show  that  the  same  prop- 
erty belonged  absolutely  to  the  husband.^     In  an  action 

1  Craft  V.  Perkins,  83  Ga.  760.  ^  Watson  v.  Camper,  119  Ind.  60. 

*  Hayes   v.    Shattuck,    21    Cal.  51;         *  Shears    v.    Dusenbury,    13    Gray, 
Dyer  v.  Hopkins,  112  111.  168.  292. 

"  Batterman  v.  Albright,  122  N.  Y.  '  Tower  v.  White,  JO  Paige,  395. 

481;  19  Am.  St.  Rep.  510.  »  Manigault  v.  Holmes,  1   Bail.  Eq. 

«Windlett  V.  Life  Ins.  Co.,  130  111.     283. 
621;  Spinka  v.  Glenn,  67  Ga.  74:4. 


541  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  303 

for  foreclosure,  no  riglits  ought  to  be  litigated  except  those 
which   are   claimed  under  the  mortgagor.     If  the  court 
undertakes  to  determine  claims  hostile  to  the  title  of  the 
mortgagor,  its  decree  will  certainly  be  erroneous,  and  lia- 
ble to  reversal  in  an  appellate  court;    but  it  is  not  coram 
non  judice  and  void.     On  the  contrary,  it  is  valid  until 
reversed,  and  is  not  subject  to  any  collateral  attack.*    But 
the  priority  of  respective  liens  is  a  proper  question  to  be 
determined  in  a  foreclosure  suit.     If  a  decree  disposes  of 
the  question  of  precedence  between  two  mortgages,  it  is 
final  upon  that  point,  though  the  bill  neither  asked  for 
such  a  decision  nor  for  general  relief.     The  words  "that 
it  is  ordered,  adjudged,  and  decreed  that  the  defendants 
and  all  persons  claiming  under  them,  or  either  of  them, 
since  the  commencement  of  this  cause  be  forever  barred 
and  foreclosed  of  their  equity  of  redemption,  and  claim 
of,  in,  or  to  the  mortgaged  premises,  and  every  part  and 
parcel  thereof,"  are  sutficient  to  show  the  decision  of  a 
question  of  priority  and  to  prevent  its  being  again  con- 
tested.2     jf  ^  defendant  answers,  asserting  that  he  has  a 
junior  mortgage  and  also  a  judgment  lien,  for  both  of 
which  he  prays  a  decree  of  foreclosure,  and  the  decree 
finally  rendered   recognizes   the   judgment   lien,  and    is 
silent  respecting  the  mortgage,  it  is  conclusive   against 
the  existence  and  lien  of  such  mortgage.^     A  decree  or- 
dering a  sale  necessarily  negatives  every  claim  that   the 
premises,  for  some  reason,  are  not  subject  to  sale.    Hence 
the  homestead  interest  is  necessarily  disposed  of  by  a 
decree  to  which  both  husband  and  wife  are  parties;  and 
neither  can    therefore    successfully  resist  an  action  for 
property  sold  under  an  order  of  sale  issued  in  a  suit  to 
which  he  or  she  was  a  party  on  the  ground  that  the  land 
sold  is  a  homestead.-'     So  a  decree  adjudging   the  mort- 

1  Board  of  Supervisors  v.  M.  P.  R.  R.         '  Haines  v.  Flinn,  26  Neb.  3S0;    18 
Co.,  24  Wis.  1-21;  Bundy  z;.  Cunning-     Am.  St.  Rep.  7.^5. 

ham,  107  Ind.  360;  Ulrichv.  Dreschell,  *  Lee  r.  Kingsl.ury,  1.3  Tex.  68;   62 

88  Ind    354  -^"i-  '^^<^-  ^'^^''-   ^''^^ter  v.  Dear,  24  lex. 

2  Board  of  Supervisors  v.  M.  P.  R.  R.  17;  76  Am.  Dec.  89;  Hoiiaker  v.  Cecil, 
Co.,  24  Wis.  123.  84  Ky.  202. 


§  303  THE    JUDGMENT    AS    AN    ESTOPPEL.  542 

gagee  entitled  to  the  rents  and  appointing  a  receiver  to 
collect  thein  precludes  the  mortgagor  from  claiming  that 
such  rents  are  exempt.^ 

If  specified  persons  are  made  defendants,  and  it  is  al- 
leged that  they  claim  some  interest  in  tlie  premises  "as 
subsequent  purchasers  or  encumbrancers,  or  otherwise,"  a 
general  decree  will  preclude  them  from  asserting  any 
rights  acquired  from  the  mortgagor  after  the  execution  of 
the  mortgage.  But  it  will  not  divest  any  rights  held  par- 
amount to  the  title  of  the  mortgagor  when  he  executed 
the  mortgage.^  The  right  of  the  wife  of  the  mortgagor  to 
dower  is  such  a  paramount  right.  If  she,  after  becoming 
a  widow,  is  made  a  party  to  a  suit  to  foreclose  a  mortgage 
executed  by  her  husband  alone,  and  no  allegation  is 
made  in  the  bill  in  reference  to  her  claim  for  dower,  the 
decree  will  not  be  considered  as  affecting  her  dower  estate.* 

One  who  is  made  a  party  defendant  to  a  suit  to  foreclose 
a  mortgage  or  other  lien  may  have  an  interest  in  the  prem- 
ises in  two  or  more  capacities,  and  may  sometimes  be 
bound  in  one  capacity  without  being  affected  in  the  other. 
If  he  is  interested  in  a  representative  capacity,  and  the 
complaint  contains  no  statement  concerning  the  capacity 
in  which  he  is  sued,  some,  and  perhaps  all,  of  the  courts 
will  regard  him  as  being  made  a  party  only  in  his  per- 
sonal or  private  capacity.  Hence  where  one  who  was  an 
assignee  in  bankruptcy  of  a  mortgagor  was  made  a  party  to 
a  foreclosure  suit  without  any  reference  in  the  proceedings 
to  his  being  sued  as  assignee,  it  was  held  that  the  decree 
of  foreclosure  and  the  sale  thereunder  did  not  affect  the 
title  held  by  him  as  assignee.''  On  the  other  hand,  if  one 
is  made  a  defendant  in  a  representative  capacity  onlj',  it 
will  not  conclude  him  in  his  private  capacity.  Therefore 
judgment  against  an  executrix  foreclosing  a  mortgage 
made  by  her  deceased  husband  will  not  estop  her  from 

1  Storm  V.  Ermantront,  89  Ind.  214.  ^  Lewis  v.   Smith,  9  N.  Y.  502;  61 

2  Fro.t  V.  Koon,  30  N.  Y.  444;  cit-  Am.  Dec.  706;  MerchaiUs'  Bank  v. 
ing  Lewis  v.  Smith,  11  Barb.  156;  Tliomson,  55  N.  Y.  7;  po^f,  sec.  ;W3  a. 
Bank  of  Orleans  v.  Flass;,  3  Barb.  Ch.  ■*  Lanilon  v.  Townshenil,  112  N.  Y. 
316;  Elliott  V.  Pell,  1  Paige,  2u3.  93;  8  Am.  St.  Rep.  712. 


543  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  303  a 

resisting  the  issuing  of  a  writ  of  assistance  to  put  the  pur- 
chaser in  possession,  on  the  ground  that  the  property 
mortgaged  was  a  homestead,  and  the  mortgage  therefore 
void  because  she  did  not  join  therein.'  Where  the  rule 
prevails  that  title  claimed  adversely  to  the  mortgagor 
cannot  be  litigated  in  a  suit  to  foreclose  the  mortgage, 
and  where  the  husband  of  a  married  woman  is  a  proper 
party  to  any  suit  affecting  her  separate  property,  the  fore- 
closure of  a  mortgage  executed  by  a  wife,  but  not  by  her 
husband,  though  he  was  a  party  defendant  to  the  foreclos- 
ure, will  not  estop  him  from  insisting  that  the  property 
mortgaged  was  not  her  separate  property,  and  therefore 
that  the  title  thereto  has  not  been  affected  by  the  decree 
of  foreclosure  and  the  sale  pursuant  thereto,^ 

§  303  a.  Judgments  Affecting  Right  of  Dower.  —  It 
seems  that  in  order  to  conclude  the  wife's  right  of  dower 
it  must  in  all  cases  be  necessarily  and  specifically  put  in 
issue,  whether  the  proceeding  be  to  foreclose  a  mortgage 
to  which  the  wife  was  not  a  party,  or  to  enforce  any  other 
claim  to  which  her  right  of  dower  was  paramount.  M. 
and  wife  conveyed  their  real  property  to  his  brother.  M.'s 
creditors  subsequently  recovered  judgment  against  him 
and  obtained  the  appointment  of  a  receiver.  This  re- 
ceiver obtained  a  judgment  against  M.  and  wife  and  M.'s 
brother,  declaring  the  conveyance  fraudulent  and  void  as 
to  creditors,  and  directing  a  sale  of  the  premises,  and  that 
the  parties  in  possession  should  deliver  possession  to  the 
purchaser.  Prior  to  the  sale  M.  died.  His  wife  brought 
an  action  to  recover  dower  in  the  premises,  and  the  judg- 
ment against  her  in  the  action  to  set  aside  the  deed  was 
claimed  to  bar  her  from  asserting  any  claim  to  dower, 
although  she  had  not  presented  any  such  claim  in  her 
answer,  nor  did  the  judgment  purport  to  dispose  of  any 
such  claim.  The  court  of  appeals,  in  disposing  of  this 
branch  of  the  case,  said:  "  She  is  bound  by  that  judgment, 

'  Stockton  B.  &L.  Ass'ni).  Chalmers,         ^  McCoinb    v.    Spangler,     71     Cal. 
75  Cal.  322;  7  Am.  St.  Kup.  173.  418. 


§  303  a  THE    JUDGMENT    AS    AN    ESTOPPEL.  544 

wliatever  may  be  its  legitimate  effect.  The  judgment  is 
final  and  conclusive  upon  her  as  to  all  matters  put  in 
issue  and  litigated  in  the  action.  But,  as  stated  above, 
the  matter  of  her  inchoate  right  of  dower  was  not  put  in 

issue  and  litigated  therein The  plaintiff  in  this 

action  might  have  raised  in  that  action  the  question  that 
she  had  a  right  of  dowor,  as  yet  inchoate,  but  which  might 
become  complete;  and  might  have  asked  that  if  it  should 
be  found  to  exist,  the  judgment  should  make  provision 
therefor.     But  was  she  bound  to  do  so?     This  would  not 
have  been  matter  in  direct  opposition  to  the  action  in  de- 
fense to  the  claim  made  by  the  plaintiffs  therein;  it  would 
have  been  a  quasi  admission  of  the  cause  of  action  set  up, 
and  a  seeking  for  relief  in  the  judgment  which  must  fol- 
low.    And  when  the  authorities  say  that  a  judgment  is 
final  and  conclusive  upon  the  parties  to  it  as  to  all  mat- 
ters which  might  have  been  litigated  and  decided  in  the 
action,  the  expression  must  be  limited  as  applicable  to 
such  matters  only  as  might  have  been  used  as  a  defense 
in  that  action  as  against  an  adverse  claim  therein,  and 
such  matters    as    if  now  considered   would    involve    an 
inquiry  into  the   merits  of  the  former  judgment.     The 
existence  of  an  inchoate  right  of  dower  in  the  plaintiff 
would  not  have  been  a  defense  to  the  action  of  the  re- 
ceiver for  a  sale  of  the  premises  and  a  satisfaction  from 
the  avails  of  the  sale  of  the  judgment  debt  which  he  rep- 
resented.    It  could  not,  if  pleaded  and  shown,  have  pre- 
vented a  judgment  substantially  that  which  was  rendered. 
The  most  which  could  have  be^n  effected  would  have  been 
to  have  secured  in  the  judgment  an  auxiliary  provision 
recognizing  and  protecting  the   contingent  right.      And 
again,  it  was  a  right  pre-existent  the  claims  and  defenses 
there  litigated,  and  paramount  to  any  right  of  the  plain- 
tiff in  that  action  there  sought  to  be  enforced We 

are  of  the  opinion  that  the  plaintiff  is  not  estopped  by  the 
record  in  the  action  brought  by  the  receiver."  ^    But  when 

»  Malloney  v.  Horan,  49  N.  Y.  115;  10  Am.  Rep.  335;  Grover,  J.,  disseuting. 


645  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  804 

an  action  is  brought  for  an  assignment  of  dower,  or  the 
claim  to  dower  is  otherwise  brought  in  issue  and  deter- 
mined, the  judgment  is  conclusive  of  every  issue  essential 
to  its  support.  If  the  application  to  have  dower  assigned 
is  denied,  this  is,  in  all  subsequent  proceedings,  conclusive 
of  the  non-existence  of  the  right  to  have  dower  assigned.^ 
If  it  is  granted,  the  judgment  is  equally  conclusive,  not 
only  in  favor  of  the  right  to  dower,  but  also  that  every 
fact  necessary  to  that  right  existed,  as  that  the  husband 
of  the  claimant  died  seised  of  the  premises  out  of  which 
her  dower  w^as  assigned.^ 

§  804.  Judgments  of  Partition.  — We  find  it  declared 
in  one  case  that  "  a  writ  of  partition,  or  a  petition  for 
partition,  which  is  but  a  substitute  for  the  former,  is  a 
mere  possessory  action,"  and  that  it  at  most  can  bar 
nothing  but  possessory  actions.^  There  are  other  au- 
thorities indicating  that  a  judgment  in  partition  was  but 
a  segregation  into  separate  parcels  of  the  titles  which  the 
parties  before  held,  and  that  it  had  no  force  as  an  estop- 
pel.* Doubtless  there  may  have  been  and  may  yet  be 
cases  in  which  a  particular  claim  of  title  is  the  only  one 
which  is  put  in  issue,  and  in  which  the  final  judgment 
may  affect  nothing  but  such  title.  But  at  the  present 
time  there  can  be  no  doubt  that  a  judgment  in  a  proceed- 
ing for  the  partition  of  land's  is  as  conclusive  upon  the 
matter  put  in  issue  and  tried  as  a  judgment  in  any  other 
proceeding,  and  may  be  set  up  as  a  bar  to  a  writ  of  entry 
involving  the  same  questions  of  title.®  And  a  suit  for 
partition  is  perhaps  the  only  proceeding  known  to  the 
law  in  which  every  possible  question  affecting  tlie  title  to 
real  estate  may  be  made  an  issue  and  determined,  and  in 

'  Erumr.  Brady,  48  Mo.  560.  Ohio  St.  211;  McRain  v.  McBain,  15 

^  Gay  V.  Stancell,  76  N.  C.  3G9;  Sig-  Ohio  St.  3,37;  86  Am.  Dec.  478. 
non  V.  Haun,  86  N.  C.  310.  ^  Whittemore  v.  Shaw,  8  N.  H.  393; 

3  Mallett  V.  Foxcroft,  1  Story,  474.  Doolittle   r.   Don    Maus,   34   111.  457; 

*  Nicely  v.   Boyles,  4  Humph.   177;  Pentz  v.  Kuester,  41  Mo.  450;    Han- 

40  Am.  Dec.   638;  Whitlock  v.   Hale,  cock   v.  Lopez,   53  Cal.  .302;    Linehan 

10  Humph.  63;  McClure  v.  McClure,  v.  Hathaway,  54  Cal.  251;  Jeukiua  v. 

14  Pa.  St.  136;  Tal)ler  v.  Wiseman,  2  Fahey,  73  N.  Y.  355. 

JCDG.  I.  — 35 


§  304  THE    JUDGMENT   AS    AN    ESTOPPEL.  546 

which  every  person,  whether  in  being   or  not,  may  be 
bound  by  such  determination. 

Of  course,  a  judgment  in  partition  is,  to  the  same  extent 
as  every  other  judgment,  restricted  in  its  efi'ect  to  the  par- 
ties over  whom  the  court  acquired  jurisdiction;  and  W'hile 
there  are  provisions  in  the  statutes  of  many  of  the  states 
authorizing  the  proceeding  to  be  taken  against  unknown 
owners,  and  under  proper  allegations  to  bring  before  the 
court  ever}^  person  who  has  any  interest  in  the  property, 
whether  si:)ecially  named  or  not,  still,  where  this  proceed- 
ing is  not  resorted  to,  and  the  court  has  not  acquired 
jurisdiction  over  persons  not  named  in  the  complaint  or 
process,  doubtless  they  will  not  be  affected  by  the  judg- 
ment. But  as  to  the  persons  who  are  brought  before  the 
court,  the  judgment  is  conclusive  of  every  issue  necessary 
to  its  support.  As  already  stated,  all  questions  of  title  or 
possession  may  be  put  in  issue  and  finally  determined.* 
The  judgment  in  a  suit  finally  partitioning  land  estab- 
lishes the  title  to  the  land  partitioned,  and  is  conclusive 
upon  every  adverse  claim  of  title  or  of  possession  existing 
at  the  date  of  its  rendition,  and  held  by  any  of  the  parties 
to  the  suit.  The  law  requires  the  court  to  ascertain  and 
determine  the  rights  of  the  parties,  and  makes  it  the  duty 
of  parties  to  disclose  their  adverse  claims.  The  decree 
necessarily  affirms  that  the  parties  named  therein,  who 
are  thereby  adjudged  to  hold  undivided  interests  in  the 
property,  are  tenants  in  common,  joint  tenants,  or  copar- 
ceners, and,  as  such,  the  exclusive  owners  of  the  property 
of  which  partition  is  made.^  If  the  land  is  set  off  or  is 
sold,  the  purchaser  or  the  party  to  whom  it  is  set  off  be- 
comes thereby  vested  with  the  title  held  by  all  the  parties 

'  Godfrey  v.  Godfrey,  17  Ind.  6;  79  Burghardt    v.    Van    Dusen,    4   Allen, 

Am.  Dec.  448;  De  Uprev  v.  De  Uprey,  374;    Herr  v.  Herr,  5  Pa.  St.  428;  47 

27  Cal.  3'29;  87  Am.  Dec.  81.  Am.  Dec.  416;    Dixon   v.   Warters,  8 

•^  Bobb    V.    Graham,    89    Mo.    200;  Jones,    449;    Rabb   v.    Aiken,    2   Mc- 

Forder  v.  Davis,  38  Mo.  107;  Clapp  v.  Cord  Ch.   119;  Linehan  v.  Hathaway, 

Bromagham,    9    Cow.   569;   Jordan    v.  54  Cal.  251;  Burroughs  ?;.  De  Couts,  70 

Van   Epps,    85   N.  Y.   427;   Stean   v.  Cal.  361;  L'Hommedieu  v.  Cincinnati 

Anderson,  4  Harr.  (Del.)  209;  Freeman  etc.  R.  R.  Co.,  120  Ind.  435;  Luntz  v. 

on  Cotenancy  and  Partition,  sec.  531;  Greve,  102  Ind,  173, 


547  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  304 

to  the  suit.'  If  one  is  made  a  party  defendant  under  an 
allegation  that  he  claims  some  interest  in  the  property, 
the  nature  of  which  is  to  the  plaintiff  unknown,  and  he 
fails  to  answer,  and  a  judgment  is  entered  declaring  other 
persons  to  be  the  owners  of  the  property,  and  partition 
is  made  accordingly,  he  is  estopped  by  the  judgment, 
and  cannot  afterwards  show  that  he  was  a  co-tenant, 
and  that  a  portion  of  the  land  ought  to  have  been  set 
apart  to  him.^  If  a  judgment  in  partition  is  entered  in 
an  action  between  A  and  B,  declaring  the  former  to  be 
the  owner  of  one  third  and  the  latter  of  two  thirds  of  the 
premises,  A  cannot  disregard  this  judgment,  and  maintain 
a  second  action,  upon  the  theory  that  the  two  thirds  were 
held  by  B  and  his  wife  as  tenants  by  entireties.  It  is 
true  that  the  former  judgment  is  not  binding  upon  the 
wife,  because  she  was  not  a  party  to  it,  but  it  is  binding 
upon  both  A  and  B,  and  neither  can  collaterally  assail  it.' 
A  decree  in  partition  is  conclusive  that  at  its  rendition 
the  lands  set  off  to  one  of  the  parties,  with  a  spring  thereon, 
were  held  in  common  by  the  parties  prior  to  the  judgment.* 
The  fact  that  a  party  is  described  as  having  a  particular 
interest  will  not  prevent  the  judgment  from  aflfecting  a 
different  interest,  if  such  he  had.  As  the  object  of  the 
proceeding  is  to  make  a  final  partition  of  the  property,  it 
is  unreasonable  to  suppose  that  when  one  is  alleged  to 
have  a  particular  interest  he  is  made  a  party  with  respect 
to  that  interest  only,  or  is  left  free  to  avoid  the  partition 
by  subsequently  asserting  another  interest.  Hence  if  a 
widow  is  made  a  party  under  the  allegation  that  she  is 
entitled  to  dower,  she  cannot  after  judgment  assert  a  right 
to  a  homestead,^  and  if  by  the  judgment  she  is  awarded 
an  interest  as  heir  only,  she  cannot  afterwards  success- 
fully claim  dower.*     But  if  one  of  the  co-tenants  is  in- 

^  Hart   V.    Steedman.    98   Mo.    452;         »  Hanna  i>.  Scott,  84  Ind.  71. 
Crane  v.  Kimmer,  77  Ind.  215;  Janes         *  Edson  v.  Munsell,  12  Allen,  GOO. 
V.   Brown,   48   Iowa,    5CS;   Cooper  v.         »  Wright  ?;.  Dunning,  46  111.  271;  90 

Baston,  89  Ind.   185;  Oliver  v.  Mont-  Am.  Dec.  287. 
gomery,  39  Iowa,  601.  ^  Jordan   v.    Van   Epps,    85   N.    Y. 

=*  Morenhaut  v.  Higuera,  32  Cal.  290.  427.     Nor  will  she   be  any  the   lesa 


§§  305,  306       THE    JUDGMENT    AS    AN    ESTOPPEL.  548 

debted  to  the  other  for  purchase-money,  and  the  fact  of 
such  indebtedness  is  not  drawn  in  question  in  the  suit  for 
partition,  the  judgment  therein,  it  has  been  held,  does 
not  estop  the  creditor  co-tenant  from  maintaining  an 
equitable  ejectment  to  enforce  payment  of  such  purchase- 
money.* 

If  either  of  the  parties  acquires  any  new  interest  in  the 
property  during  the  pendency  of  the  suit,  the  authorities 
appear  to  require  him  to  assert  it  b}''  a  supplemental 
pleading;  and  if  he  permits  a  final  judgment  to  be  entered 
without  so  asserting,  he  is  barred  by  such  judgment,  to 
the  same  extent  as  if  such  interest  had  been  vested  in 
him  at  the  commencement  of  the  suit.'^ 

§  305.  Partition — Judgment  in  Favor  of  One  not  in  Pos- 
session.—  Though  a  statute  authorizes  a  partition  to  be 
sought  onlj'^  by  some  one  in  possession,  yet  the  fact  of 
possession  is  not  a  jurisdictional  fact,  in  the  absence  of 
which  the  action  of  the  court  is  void.  If  all  the  parties 
in  interest  are  brought  before  the  court,  its  decree  will  be 
binding,  until  vacated  or  reversed,  though  the  applicant 
was  not  one  of  the  parties  authorized  by  law  to  ask  for  a 
partition.'  A  tenant  in  common  of  a  vested  remainder 
may,  while  the  tenant  for  life  is  in  possession,  maintain 
an  action  for  partition.^ 

§  306.  Partition  —  Persons  not  in  Esse.  —  In  proceedings 
for  partition,  as  well  as  in  other  actions  affecting  realty, 
it  is  sufficient  to  bring  into  court  the  person  entitled  to 
the  first  estate  of  inheritance  with  those  claiming  prior 
interests,  omitting  all  claiming  or  who  may  claim  in  re- 
version or  remainder  after  the  vested  inheritance.  The 
decree  will  therefore  pass   a  title  free  from   an}'-  claims 

bound  if  the  pleadings  seem  to  regard  Co.,  68  Cal.  73;  84  Cal.  541;  Holladay 

her  as  a  child  rather  than  as  a  widow  v.    Langsford,    87    Mo.    577;   Bobb  v. 

of  a   deceased   owner:    Woodward  v.  Graham,  89  Mo.  207. 

Elliott,  27  S.  C.  368.  ^  Blakeley  v.  Calder,  15  N.  Y.  617. 

1  McClure  v.  McClure,   14  Pa.  St.  *  Mead  v.   Mitchell,   17  N.  Y.  210; 
134.  72  Am.  Dec.  455;  Clemens  v.  Clemens, 

2  Christy  v.   Spring  Valley  Water  37  N.  Y.  59. 


549  THE    JUDGMENT    AS    AN    ESTOPPEL.       §§  307,  308 

whicli  might  otherwise  subsequently  vest  in  persons  not 
in  esse  at  the  time  of  its  rendition.'  An  English  case 
recognizes  an  exception  to  this  principle  of  virtual  repre- 
sentation by  denying  its  applicability  in  cases  where  the 
person  seised  in  fee  is  liable  to  have  his  seisin  defeated 
by  a  conditional  limitation  or  an  executory  devise,  be- 
cause in  that  event  the  estate  is  insufficiently  represented 
by  the  person  holding  the  first  vested  estate  of  inheri- 
tance.^ This  exception  is  repudiated  so  far  as  it  seems  to 
be  noticed  in  the  United  States.*  But  if  the  proceedings 
in  partition  make  no  reference  to  the  contingent  interests 
of  persons  not  in  being,  and  the  judgment  does  not  pro- 
vide for  "and  protect  such  interests  by  substituting  the 
fund  derived  from  the  sale  of  the  land  in  place  of  the 
land,  and  preserving  it  to  the  extent  necessary  to  satisfy 
such  interests  as  they  arise,"  they  are  not,  at  least  in  New 
York,  concluded  by  the  final  judgment.* 

§  307.  Partition  —  Unknown  Owners.  —  Under  statutes 
providing  that  proceedings  in  partition  may  be  prosecuted 
against  unknown  owners,  a  decree  regularly  obtained  is 
conclusive,  in  the  absence  of  fraud  or  collusion,  of  the 
claims  of  a  party  in  possession  claiming  in  severalty,  who 
was  only  a  party  to  the  proceeding  under  the  general 
designation  of  unknown  owners.  By  failing  to  answer, 
he  admits  that  the  land  is  held  in  common,  and  that  the 
petitioners  are  entitled  to  have  it  partitioned. 


s 


§  308.    Conclusive  without  Deed  of  Partition.  —  A  judg- 
ment in  partition,  under  the  statute,  is  final  between  the 

1  Wills  V.  Slade,  6  Ves.  498;  Gaskell  320.     See  also  McArthur  v.  Scott,  113 

V.    Gaskell,    6   Sim.    C43;    Nocline    v.  U.  S.  340. 

Greenfield,  7  Paige,  544;  .34  Am.  Dec.         ^  Cook  v.  Allen,  2  Mass.  461;  Nash 

363;   Cheesemau  v.    Thorne,    1    Edw.  v.  Church,   10  ^Yis.  303;  78  Am.  Dec. 

Ch.  629.     See  sec.  172.  678;  Kane  ?'.  Rock  River  Co.,  15  Wis. 

*  Goodess  V.  Williams,  2  Younge  &  179;  citing  Kester  v.  Stark,  19  111.  328; 
Q   595  Foxcroft  v.  Barnes,  29  Me.  128;  Rogers 

's  Mead  v.  Mitchell,  17  N.  Y.  210;  72  v.   Tucker,   7  Ohio  St.   417;  Pfeltz  v. 

Am.   Dec.  455;  Brevoort  v.  Brevoort,  Pfeltz,  1  Md.  Ch.  455;  Reese  v.  Holmes, 

70  N.  Y.  136.  5  Rich.  Eq.  531. 

♦  Monarque  v,  Monarque,  80  N.  Y. 


§  308  a  THE    JUDGMENT   AS    AN    ESTOPPEL.  550 

parties,  and  is  conclusive  evidence  of  title,  without  the-, 
execution  of  any  deeds  either  by  the  parties  or  by  com- 
missioners;^ and  the  interlocutory  decree,  until  set  aside 
or  modified  in  some  direct  proceeding,  is  also  "  final  and 
conclusive  as  to  the  nature  and  extent  of  the  rights  of  the 
respective  parties  to  it.  If  the  parties  choose  to  stop  with 
a  decree  ascertaining  their  rights,  and  not  to  proceed  to 
partition  in  fact,  it  is  not  perceived  why  their  neglect  to 
take  the  latter  should  render  the  former  step  ineffectual." ^ 

§  308  a.  Partition  of  Lands  of  Decedents.  —  Under 
statutes  in  force  in  many  of  the  states,  when  the  estate  of 
a  decedent  has  been  fully  administered  upon  and  the 
obligations  against  it  discharged,  and  it  is  ascertained 
that  a  residue  remains  to  which  several  persons  are 
entitled  as  his  heirs  or  devisees,  proceedings  may  be  had 
in  the  court  having  jurisdiction  over  the  administration 
of  the  estate  to  partition  such  residue  among  the  parties 
entitled  thereto,  either  by  allotting  to  each  a  parcel  thereof 
equivalent  in  value  to  his  interest  in  the  estate,  to  be  held 
in  severalty,  or  by  selling  the  whole  and  distributing  to 
each  his  share  of  the  proceeds. 

The  application  may  be  made  by  any  one  entitled  to 
the  partition.  If  the  person  entitled  is  a  minor,  he  may 
apply  by  his  guardian;  if  a  married  woman,  her  husband 
may  petition  in  her  right.^  If  any  of  the  heirs  has  con- 
veyed, his  grantee  is  entitled  to  petition  for  partition.* 
In  Pennsylvania  the  application  may  be  by  the  widow  of 
an  heir  who  had  an  estate  in  remainder  after  the  life  of 
his  mother,  who  dies  before  the  petition  was  filed,^  and 
may  probably  also  be  by  a  tenant  for  life.^ 

A  petition  or  application  in  writing  is  essential,  and 
a  partition   will   be  adjudged  void   unless  such  written 

>  Wright  V.  Marsh,  2  G.  Greene,  94;         *  Stuart's  Appeal,   56   Pa.  St.    241 ; 

Barney  v.   Chittenden,   2  G.   Greene,  De  Castro  u  Barry,  18  Cal.  99;  Manly 's 

165.  Estate,  1  Ashm.  363. 

2  Allie  t).  Schmitz,  17  V^'"is.  169.  *  Cote's  Appeal,  79  Pa.  St.  235. 

'  Eckert  v.  Yous's  Adm'r,  2  Rawle,         ^  Rankin's     Appeal,     95     Pa.     St, 

136.  358. 


651  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  308  a 

petition  is  established,  except  when  the  proceedings  are 
drawn  in  question  after  the  lapse  of  so  great  a  period  of 
time  that  the  court  may  reasonably  presume  that  such 
petition  existed  in  due  form,  but  has  been  lost.^  In  mosf 
of  the  states  the  statutes  are  either  wholly  silent  or  else 
speak  in  general  and  vague  terms  respecting  the  contents 
of  the  petition  for  partition.  Where  any  petition  is  re- 
quired, it  seems  to  be  obvious  that  it  ought  to  at  least  set 
forth  the  facts  upon  which  the  court  is  called  to  act  suffi- 
ciently to  inform  the  court  of  the  names  of  the  parties, 
so  far  as  known,^  the  respective  moieties  and  interests  of 
each,  and  the  property  sought  to  be  divided  among  them. 

The  parties  to  the  proceeding  must  include  all  persons 
having  any  interest  in  the  property  derived  from  and 
under  the  decedent,  and  if  any  of  such  persons  are  not 
made  parties,  whether  infants  or  adults,  their  interests 
cannot  be  affected  by  the  partition.^  By  property  derived 
from  and  under  the  decedent  we  mean  such  only  as  is  ac- 
quired from  him  by  descent,  devise,  or  bequest;  for  if  he 
in  his  lifetime  conveyed  the  property,  or  any  part  of  it, 
the  part  so  conveyed  constitutes  no  part  of  his  estate  in 
probate,  and  cannot  be  there  partitioned.*  If  any  of  the 
heirs  or  devisees  has  conveyed  his  share,  the  conveyance 
may  be  recognized  and  protected,  and  the  part  conveyed 
set  off  to  his  grantee;^  and  a  conveyance  made  during  the 
pendency  of  the  proceedings  does  not  impair  the  force  of 
the  partition.*  A  known  vendee  must  be  made  a  party, 
or  the  proceedings  will  not  affect  his  interests.^ 

The  questions  which  may  be  litigated  and  determined 
are  restricted  by  the  limited  jurisdiction  of  the  court,  and 
in  some  of  the  states  by  the  manifest  fear  that  the  juris- 
diction cannot  be  safely  exercised  in  any  but  the  most 

1  Brown  v.  Sceggell,  22  N.  H.  548.  of  Castro  v.  Barry,   18  Cal.  96;  Wis. 

'^  Ragan's    Estate,    7    Watts,    438;  Rev.  Stats.,  sec.  3945;  Howell's  Mich. 

Richards  v.  Rote,  68  Pa.  St.  248.  Stats.,  sec.  5970. 

3  Whitman  v.  Reese,  59  Ala.  532.  *  Cook  v.  Davenport,  17  Mass.  345. 

*  Dreshcr  v.  A.  W.  Co.,  52  Pa.  St.  '  Butler  v.  Roys,  25   Mich.  53;    12 

225;  91  Am.  Dec.  150.  Am.   Rep.  218;  Thompson  v.  Stitt,  56 

5  Vt.  Stats.  18S0,  sec.  2257;  Estate  Pa.  St.  156. 


§  308  a  THE    JUDGMENT    AS    AN    ESTOPPEL.  -552 

simple  cases.     The  jurisdiction  is  only  ancillary  to  the 
settlement  of  the  estate  of  the  decedent,  and  therefore  does 
not  extend  over  moieties  and  interests  held  by  others/ 
unless  specially  included  by  statute.    In  some  of  the  states, 
if  the  decedent  was  a  co-tenant  with  others,  the  court  is 
given  authority'  to  set  off  his  share  from  that  of  the  living 
co-tenants;^  and  in  others,  the  court  may  proceed  to  make 
complete  partition  between  a  decedent  and  his  surviving 
co-tenants.^    Sometimes  the  court  is  authorized  to  act  only 
when  the  shares  or  interests  of  the  parties  are  not  in  dis- 
pute, or  do  not  seem  uncertain.^     In  such  cases  the  juris- 
diction of  the  court  is  not  ousted  or  suspended  by  the  mere 
claim  of  one  of  the  parties  that  there  is  a  dispute  or  uncer- 
tainty.    "To  deprive  the  probate  court  of  its  jurisdiction 
in  a  matter  of  this  kind  in  any  particular  case,  it  must  be 
made  to  appear  that  there  is  a  real  doubt  and  uncertainty 
in  relation  to  the  legal  rights  of  the  parties.    The  mere  fact 
that  they  do  not  agree  what  those  rights  are,  or  that  they 
are  in  controversy  in  respect  to  them  with  each  other,  is 
not  of  itself  sufficient  and  conclusive.     It  must  first  be  by 
some  means  affirmatively  and  satisfactorily  shown  that 
there   is  an   actual  dispute   and  uncertainty  concerning 
their  shares  or  proportions,  which  can  be  definitely  deter- 
mined only  by  submitting  some  controverted  question  of 
fact  to  a  jury,  or  some  doubtful  and  contested  question  of 
law  to  a  legal  tribunal  competent  to  decide  it.     If  the  facts 
in  reference  to  which  the  alleged  dispute  or  uncertainty 
arises  are  all  known  to  and  expressly  admitted  by  the 
parties,  and  the  law  applicable  thereto  is  clearly  settled 
and  established,  and  if  these  show  that  the  court  has 
jurisdiction,  it  is  the  duty  of  the  judge  to  proceed  and 
cause  the  partition  to  be  made,  although  one  of  the  parties 
should  insist  that  there  is  dispute  and  controversy  con- 

'  Romey's       Appeal,      8       Watts,  Stewart  v.  Alleghany  Bank,  101  Pa.  St. 

415.  342. 

2  Vt.  Stats.   1880,  sec.  2259;  Mass.         *  Me.  Stats,  1883,  p.  550,  sees.  8,  9; 
Stats.  1882,  p.  1035,  sec.  60.  Kelley  v.  Kelley,  41  N.  H.  503;  Gage 

3  Tex.  Stats.  1879,  sec.  2132;  Bright-  v.  Gage,  29  N.  H.  533;  Mass.  Stats. 
ly's  Purdon's  Dig.,  p.  538,   sec.  152;  1882,  p.  1035,  sec.  59. 


553  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  308  a 

cerning  their  relative  shares  and  proportions  of  the 
estate."*  If,  after  the  court  has  assumed  jurisdiction  and 
appointed  commissioners,  there  arises  a  dispute  or  uncer- 
tainty, the  court  will  proceed  with  the  partition,^  The 
fact  that  the  decedent  did  not  die  seised  of  the  lands 
sought  to  be  partitioned  sometimes  ousts  the  court  of  its 
jurisdiction.^  As  the  proceeding  is  merely  ancillary  to 
the  settlement  of  the  estate  of  a  decedent,  it  manifestly 
cannot  involve  any  title  not  held  by  him,  nor  determine 
the  title  of  one  of  the  heirs  who  claims  to  be  the  sole 
owner  of  the  property.*  Generally,  questions  of  title,  so 
far  as  they  can  arise  in  probate  proceedings,  are  disposed 
of  before  the  commissioners  are  appointed  to  make  parti- 
tion. The  decree  of  distribution  conclusively  fixes  the 
share  of  each  heir  or  devisee  in  the  estate  of  his  ancestor 
or  testator,®  and  the  office  of  the  proceeding  for  partition 
is  merely  to  segregate  the  shares  so  fixed,  and  transform 
them  from  undivided  interests  to  estates  in  severalty. 

Jurisdiction  over  the  persons  whose  interests  are  sought 
to  be  affected  by  the  proceeding  is  here,  as  elsewhere,  in- 
dispensable to  the  validity  of  the  partition.  This  juris- 
diction is  not  established  by  the  original  proceeding, 
wherein  the  grant  was  made  of  letters  testamentary  or  of 
administration,  nor  yet  by  the  proceeding  for  the  distri- 
bution of  the  estate  in  undivided  moieties.  It  must  be 
brought  into  being  by  some  kind  of  notice  to  the  parties 
interested,  designed  to  advise  them  of  the  fact  that  the 
interests  which  exist  in  common  and  undivided  are  about 
to  be  segregated  into  estates  in  severalty.  The  contents 
of  the  notice  and  the  modes  of  its  service  may  be  as 
prescribed  by  statute,  or  the  court  may  bo  vested  with 
a  discretion  to  designate  the  form  of  the  notice  and  the 
mode  of  its   service.     But  notice,  as  prescribed  by  the 

'  Dearborn    v.    Preston,    7    Allen,  93;  McMasters  v.  Carothers,  1  Pa.  St. 

192.  324. 

■^  Potter  V.  Hazard,  11  Allen,  187.  *  Eell'a  Estate,  6  Pa.  St.  457. 

*  Law   V.  Patterson,  1  Watts  &  S.  *  In  re  Garraud,  36  Cal.  277;  Free- 

184;  Galbraith  v.  Green,  13  Serg.  &  R.  man  v.  Rahm,  58  Cal.  111. 


§  308  a  THE    JUDGMENT   AS    AN    ESTOPPEL.  654 

statute  or  the  order  of  the  court,  is  essential,  and  if  any 
person  has  been  proceeded  against  in  the  absence  of  such 
notice,  the  proceeding  is,  as  against  him,  a  mere  nullity.^ 
The  statutes  of  Minnesota  and  California  declare  that 
"before  commissioners  are  appointed,  or  partition  ordered 
by  the  court,  notice  thereof  must  be  given  to  all  persons 
interested  who  reside  in  this  state,  or  to  their  guardians, 
and  to  the  agents,  attorneys,  or  guardians,  if  any  in  this 
state,  of  such  as  reside  out  of  the  state,  either  personally 
or  by  public  notice,  as  the  court  may  direct."^  In  Penn- 
sylvania, notice  to  all  persons  named  in  the  record  is  pre- 
sumed.^ 

When  land  has  been  awarded  to  one  of  the  heirs  on 
payment  of  a  sum  of  money,  the  payment  must  be  made 
or  secured  in  the  manner  designated  by  statute  before  the 
title  vests  in  such  heir.*  In  Pennsylv9,nia,  the  security 
must  be,  by  recognizance  or  otherwise,  to  the  satisfaction 
of  the  court.  "When  security  by  recognizance  is  taken, 
it  operates  as  a  lien  on  the  lands." ^  "The  persons  to 
whom  or  for  whose  use  payment  or  satisfaction  shall  be 
so  made,  in  any  of  the  cases  aforesaid,  for  their  respective 
parts  or  shares  of  such  real  estate,  shall  be  forever  barred 
of  all  right  or  title  to  the  same."  ® 

Proceedings  for  partition  in  connection  with  the  settle- 
ment of  the  estates  of  deceased  persons  must,  upon  prin- 
ciple, be  regarded  as  binding  and  conclusive  to  the  same 
extent  as  other  legal  proceedings.  When  the  court  has 
jurisdiction  of  the  subject-matter,  and  of  the  persons  of 

»  Breese  v.  Stiles,  22  Wis.  120;  Ruth  *  Thayer  v.    Thayer,    7   Pick.    209; 

V.    Oberbrunner,    40    Wis.    238,    269;  Jenks  v.  Howland,  3  Gray,  536;  Bav- 

Richards   v.    Rote,    68    Pa.     St.    248;  ington  r.  Clark,  2  Penr.  &  W.  115;  21 

Smith  V.  Rice,   11  Mass.  507;  Brown  Am.  Dec.  432;  Smith  v.  Scudder,   11 

V.  Leggett,  22  N.    B.  548;   Wood  v.  Serg.   &   R.    325;   Bellas   v.   Evans,  3 

Myrich,    16    Minn.    494;    Proctor    v.  Penr.  &  W.  479. 

Newhall,  17  Mass.  81.  *  Kean   v,   Franklin,  5   Serg.   &  R. 

^Cal.  Code   Civ.    Proc,  sec.    1676;  147;  Share  v.  Anderson,  7  Serg.  &  R. 

Minn.  Comp.  Stats.,  ed.   1878,  p.  597,  43;  10  Am.  Dec.  421;  Cubbage  v.  Nes- 

sec.    8.     See   also   Mass.    Gen.   Stats,  mith,  3  Watts,  314;  Riddle's  Appeal, 

1882,    p.     10.34,    sec.    51;    Wis.    Rev.  37  Pa.  St.  177. 

Stats.,  sec.  3944.  "  Brightly's   Purdon's  Dig.,  p.  541, 

3  Richards  v.  Rote.  68  Pa.  St.  248;  sec.  162;  Merklein  w.  Trapnell,  34  Pa. 

Vensel's  Appeal,  77  Pa.  St.  71.  St.  42. 


555  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  808  a 

its  owners,  its  final  judgment  operates  to  vest  the  title  to 
the  several  allotments  in  the  persons  to  whom  they  are 
respectively  allotted.  "There  is  no  reason  why  a  decree 
of  partition  in  the  probate  court  should  be  auy  less  con- 
clusive upon  the  parties  than  a  judgment  in  a  real  action. 
To  permit  one  claiming  under  a  party  to  such  partition 
again  to  litigate  the  title  would  manifestly  violate  the 
maxim  which  declares  that  public  interest  requires  an 
end  to  litigation."^  All  the  incidents  and  appurtenances 
of  each  allotment  vest  in  the  person  to  whom  it  is  assigned. 
"Unless  there  be  some  reservation  or  order  made  by  the 
committee,  the  buildings,  fences,  trees,  stone,  manure,  etc., 
that  are  upon  one  part  go  to  him  to  whom  that  part  is 
assigned";^  and  his  title  is  paramount  to  any  conveyance 
or  encumbrance  made  by  any  of  his  co-heirs,^  The  par- 
tition is  binding  on  minors,  and  cannot  be  disaffirmed  by 
them  on  attaining  their  majority.*  It  may,  in  some  states, 
be  impeached  for  fraud.  Thus  in  Mitchell  v.  Kintzer,'  the 
supreme  court  of  Pennsylvania,  in  determining  that  evi- 
dence ought  to  have  been  received  to  impeach  a  partition 
for  fraud,  said:  "The  evidence  so  offered  by  defendant 
was  rejected  by  the  court  below,  and  the  learned  counsel 
for  Kintzer  contended  here  that  the  court  below  were 
right,  because  the  proceedings  and  decree  of  the  orphans' 
court  could  not  be  impeached  by  parol,  or  for  any  cause, 
but  imported  absolute  verity,  and  vested  the  title  in  James 
Mitchell  and  his  heirs,  irrespective  of  and  beyond  all  the 
circumstances  which  might  have  attended  the  transaction. 
But  in  the  eye  of  the  law,  fraud  spoils  everything  it 
touches.  The  broad  seal  of  the  commonwealth  is  crum- 
bled into  dust,  as  against  the  interest  designed  to  be  de- 
frauded. Every  transaction  between  individuals  in  which 
it  mingles  is  corrupted  by  its  contagion.  Why,  then, 
should  it  find  shelter  in  the  decrees  of  courts  ?     There  is 

»  Carpenter  v.  Green,  11  Allen,  28;         *  Street's  Appeal,  86  Pa.  St.  222;  IIol- 

Mass.    Stats.    1882,  p.   10.36,  sec.   63;  comb  r.  Sherwood,  29  Coun.  418. 
Howell's  Mich.  Stats.,  sec.  ,5080.  *  Gelbach's  Appeal,  8  Serg.  &  R.  295. 

«  Plumer  v.  Plumer,  30  N.  H.  570.  *  5  Pa.  St.  217;  47  Am.  Dec.  408. 


§  309  THE    JUDGMENT    AS    AN    ESTOPPEL.  556 

the  last  Y)\a(ie  on  earth  where  it  ought  to  find  refuge.  But 
it  is  not  protected  by  record,  judgment,  or  decree;  when- 
ever and  wherever  it  is  detected,  its  disguises  fall  from 
around  it,  and  the  lurking  spirit  of  mischief,  as  if  touched 
b}''  the  spear  of  Ithuriel,  stands  exposed  to  the  rebuke  and 
condemnation  of  the  law."  The  rhetoric  of  this  quotation 
is  quite  striking.  In  other  respects,  we  are  obliged  to 
refuse  it  our  condemnation.  A  decree  partitioning  the 
property  of  a  decedent  is,  doubtless,  neither  more  nor  less 
subject  to  collateral  impeachment  for  fraud  than  is  a  de- 
cree in  any  other  proceeding  in  which  a  court  has  juris- 
diction both  of  the  parties  and  of  the  subject-matter,  and 
the  general  rule  is,  that  the  parties  to  an  action  or  pro- 
ceeding cannot  collaterally  impeach  it,  even  for  fraud. 

§  309.  Action  to  Quiet  Title.  —  If  the  defendant  re- 
covers judgment  on  the  merits,  in  a  proceeding  to  quiet 
title  under  the  statute  authorizing  suits  to  determine  con- 
flicting claims  to  real  estate,  the  fact  that  he  has  a  title  is 
as  conclusively  established  as  a  judgment  in  favor  of  the 
plaintiff  would  have  established  that  defendant  had  no 
title}  If  the  judgment  is  in  favor  of  the  plaintiff,  and 
declares  that  he  has  title  in  fee-simple,  and  that  the  de- 
fendant's claim  is  unjust  and  unfounded,  every  possible 
interest  of  the  latter  in  the  land  is  cut  off.^  The  defend- 
ant cannot  successfully  assert,  notwithstanding  such  judg- 
ment, that  he  has  an  easement  in  the  land,  to  wit,  the  right 
to  construct  or  maintain  a  railway  over  it.'  No  matter 
what  is  the  form  of  the  judgment,  it  is  conclusive  of  the 
facts  declared  by  it,  and  within  the  issues,  and  of  all  other 
facts  without  which  the  facts  so  declared  could  not  exist, 
or  the  relief  granted  could  not  be  sustained.  If  the  object 
of  the  action  was  to  declare  invalid  certain  tax  deeds,  a 
judgment  granting  the  relief  asked  is  conclusive  not  only 

'  Parrish      v.      Ferris,      2      Black,  Farrar  v.  Clark,   97  Ind.   447;  Good- 

606.  enow  v.  Litchfield,  59  Iowa,  226. 

■^  Davis   V.    Lennan,    125   Ind.    185;  ^  Indiana,  B.  ,&  W.  R'y  Co.  v.  Allen, 

Commissioners  v.  W^elch,  40  Kan.  767;  113  Ind.  581,  308. 


557  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  309 

of  the  invalidity  of  such  deeds,  but  also  of  plaintiff's 
ownership  of  the  property,  because,  unless  he  was  such 
owner,  he  had  no  right  to  a  decree  against  the  tax  deeds.^ 
So  if  the  complainant  asserts  title  by  virtue  of  a  will,  ask- 
ing that  it  be  construed  and  his  title  thereunder  declared 
perfect,  and  judgment  is  pronounced  in  his  favor,  the  de- 
fendant cannot  by  a  subsequent  suit  have  the  same  will 
set  aside  upon  the  ground  of  the  mental  unsoundness  of 
the  testator.^ 

An  action  was  brought  to  quiet  title  based  upon  two 
inconsistent  grounds.  The  court  ordered  plaintiff  to  elect 
upon  which  of  these  grounds  he  would  proceed.  He  made 
such  election,  prosecuted  his  action  to  judgment,  and  was 
defeated.  He  next  commenced  another  action,  based  upon 
the  ground  which  he  had  abandoned  under  the  order  of 
the  court  in  the  former  litigation.  The  former  judgment 
was  relied  upon  as  a  bar,  and  was  so  considered  by  the 
judge,  because,  under  the  statute  authorizing  a  suit  to 
ascertain  and  quiet  the  title  of  the  parties,  "the  plaintiff 
cannot,  at  his  option,  split  it  up  into  many  suits  with 
which  to  harass  and  weary  the  defendant.  By  the  final 
decree  in  such  a  suit,  the  title  to  the  premises,  as  between 
the  parties,  is  determined,  and  all  questions  or  matters 
affecting  such  title  are  concluded  thereby.  If  either  party 
omits  to  set  forth  and  prove  all  the  grounds  of  his  right, 
or  his  adversary's  want  of  it,  he  cannot  correct  his  error 
by  bringing  another  suit  upon  the  portion  or  fragment  of 
the  case  omitted."^ 

Under  an  act  of  the  legislature  of  Louisiana  "  for  the 
further  assurance  of  purchasers  at  judicial  sales,"  the  pur- 
chaser of  property  may  apply  to  the  clerk  of  the  court  in 
whose  office  the  deed  of  sale  was  recorded  for  a  monition 
or  advertisement  and  "praying  that  process  may  be 
granted  requiring  all  parties  alleging  any  informality  or 
irregularity  in  the  sale  to  show  cause,  if  any  they  have, 

1  Reed  v.  Douglas,  74  Iowa,  244;  7  *  Starr  j;.  Stark,  1  Saw.  275,  by  Judge 
Am.  St.  Rep.  476.  Deady. 

=*  Faught  V.  Faught,  98  Ind.  470. 


§  310  THE    JUDGMENT   AS    AN    ESTOPPEL.  658 

why  the  sale  shall  not  be  confirmed  and  homologated." 
If  advertisements  in  conformity  with  this  act  are  duly 
published,  and  no  opposition  being  made,  the  court  con- 
firms and  homologates  the  sale,  "it  is  clear  that  the  judg- 
ment in  the  monition  proceeding  affords  conclusive  proof 
that  the  judicial  conveyance  of  the  property  vested  a 
complete  title  in  the  purchaser  at  the  sheriff's  sale."^ 
The  dismissal  of  a  bill  to  remove  a  cloud  from  the  com- 
plainant's title,  or  to  cancel  some  deed  or  evidence  of  title 
held  by  the  defendant,  by  no  means  establishes  that  the 
latter  has  or  that  the  complainant  has  not  a  good  title; 
for  the  dismissal  may  have  proceeded  either  on  the  ground 
that  the  alleged  deed  or  other  matter  was  in  law  no  cloud 
upon  the  complainant's  title,  or  that  the  controversy  be- 
tween the  parties  was  one  which  ought  to  be  determined 
in  a  court  of  law.^ 

JUDGMENTS  IN  ACTIONS  OF  TRESPASS  ON  REAL  ESTATE. 

§  310.  First  —  In  Like  Actions.  —  It  seems  to  be  gen- 
erally, if  not  universally,  conceded  that  where  one  has 
maintained  trespass  quare  clausum  f regit  against  another, 
and  afterward  sues  for  a  subsequent  trespass,  the  former 
recovery  is  conclusive  in  reference  to  the  title  set  up  to 
the  premises  at  the  time  of  such  recovery,  and  the  defend- 
ant can  offer  in  evidence  no  title  not  acquired  by  him 
since  the  previous  suit.^  "A  recovery  in  any  one  suit  upon 
issue  joined  on  matter  of  title  is  clearly  conclusive  upon 
the  subject-matter  of  such  title;  and  a  finding  upon  title 
in  trespass  not  only  operates  as  a  bar  to  the  future  recov- 
ery of  damages  for  the  trespass  founded  on  the  same 
injury,  but  also  operates  by  way  of  estoppel  to  another 
action  for  ail  injury  to  the  same  subject  right  of  posses- 
sion. It  is  not  the  recovery,  but  the  matter  alleged  by 
the  party,  and  upon  which  the  recovery  proceeds,  that 
creates  the  estoppel     The  estoppel  in  trespass  precludes 

1  Montgomery?;.  Samory,  99  U.S. 482.         »  Bert  v.  Sternburgh,  4  Cow.  559; 

2  Phelps  V.  Harris,  101  U.  S.  370;  12     15  Am.  Dec.  402. 
Chic.  L.  N.  326. 


659  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  310 

parties  and  privies  from  contending  to  the  contrary  of 
that  point  of  fact  which,  having  once  been  put  in  issue, 
has  been  solemnly  found."'  A  judgment  in  trespass, 
grounded  upon  the  theory  that  the  land  described  in  the 
pleadings  is  within  the  boundaries  of  one  of  the  parties, 
is  conclusive  upon  that  question  in  any  other  action  of 
trespass  between  the  same  pers()ns.^  Some  cases,  how- 
ever, proceed  upon  the  theory  that  in  order  to  make  a 
judgment  in  trespass  conclusive  of  title  even  in  anotlier 
action  of  trespass,  the  title  must  have  been  placed  in  issue 
by  plea  of  soil  and  freehold,  or  by  some  other  equivalent 
plea.* 

In  Massachusetts  an  action  on  the  case  for  the  inter- 
ruption of  lights  or  other  easements,  tried  upon  the  gen- 
eral issue,  does  not  affect  the  title.  But  if  the  defendant 
pleads  title  in  bar,  and  issue  is  taken  on  it,  the  verdict 
will  be  conclusive  in  subsequent  controversies.*  In  the 
same  state  a  judgment  in  an  action  for  the  obstruction  of 
a  private  way,  on  the  general  issue,  is  admissible,  but  not 
conclusive,  evidence  in  a  subsequent  suit  for  the  continu- 
ance of  the  same  obstruction.*  In  an  action  for  overflow- 
ing lands,  occasioned  by  a  mill-dam,  a  former  recovery 
between  the  same  parties  is  conclusive  as  to  the  title  of 
the  land,  so  far  as  it  was  involved  in  the  former  suit.^ 
When  it  has  been  adjudged  that  defendant  has  no  right  to 
flow  plaintiff's  land  without  paying  damages  therefor,  he 
cannot,  in  a  subsequent  suit  to  increase  the  annual  rent, 
show  a  right  by  prescription  or  by  grant  prior  to  the  former 
judgment.^  Judgment  for  plaintiff  in  an  action  of  tres- 
pass, in  which  the  defendant  denied  the  trespass,  and  set 
up  that  he  had  a  right  of  w^ay  over  the  land,  is,  in  Massa- 

1  Outram  v.  More  wood,  3  East,  34G;  *  Standish  v.  Parker,  2  Pick.  20;  13 

Illinois  etc.  R.  R.  Co.  v.  Cobb,  82  111.  Am.  Dec.  392. 

183;  Campbell  v.  Cross,  39  Ind.   155;  ^  Parker  v.  Standish,  3  Pick.  288; 

Bowyer    v.    Schofield,    1    Abb.   App.  Kent  v.  Gerrish,  18  Pick.  564. 

177.  ^  Jones  V.  Weathersbee,  4  Strob.  50; 

■■'  Warwick  v.  Underwood,  3  Head,  51  Am.  Dec.  653;  Kilheffer  v.  Herr,  17 

238;  75  Am.  Dec.  767.  Serg.  &  R.  319;  17  Am.  Dec.  658. 

3  Potter  V.    Baker,    19  N.   H.    166;  '  Adams  v.  Pearson,  7  Pick.  341;  19 

Stevens  v.  Hughes,  31  Pa.  St.  383.  Am.  Dec.  290,  and  note. 


§  311  THE    JUDGMENT    AS    AN    ESTOPPEL.  560 

chusetts,  not  conclusive  that  defendant  had  no  right  of 
way,  but  only  that  he  had  trespassed  on  some  portion  of 
plaintiff's  land.' 

§  311.  Second  — In  Actions  in  Ejectment.  —  In  Penn- 
sylvania, a  recovery  in  an  action  of  trespass  quare  clausum 
/regit,  if  the  only  plea  is  liberum  tenementum,  is  not  con- 
clusive of  the  title  in  a  subsequent  action  of  ejectment 
for  the  same  land.^  But  in  South  Carolina  an  opposite 
view  is  maintained.  A  defendant  who,  making  such  a 
plea,  and  setting  forth  his  claim  by  metes  and  bounds, 
has  a  verdict  and  judgment  in  his  favor  may  use  this 
judgment  as  conclusive  evidence  of  title  in  an  action 
brought  by  him  against  the  former  plaintiff  for  the  land 
included  in  the  plea;  for  the  judgment  is  equivalent  to  a 
finding  that  the  title  to  the  whole  land  included  in  the 
plea  is  the  property  of  the  defendant.^  In  New  York,  a 
recovery  in  trespass  is  as  conclusive  as  a  recovery  in  any 
other  form  of  action.  The  reasoning  used  in  support  of 
this  liberal  rule  is,  that  the  matter  of  estoppel  depends 
on  the  identity  of  the  cause  of  action,  and  not  on  the 
identity  of  the  form;  that  the  causes  of  action  are  the 
same  whenever  they  can  be  supported  by  the  same  evi- 
dence, though  they  may  be  founded  on  different  writs."* 
In  Massachusetts,  a  judgment  for  the  plaintiff  in  an  action 
of  tort  in  the  nature  of  trespass  quare  clausum  fregit  is 
perhaps  never  conclusive  upon  the  title.^  "  But  the  trial 
of  an  action  of  trespass  may  turn  upon  the  question  of 
title,  and  if  that  question  is  put  in  issue,  tried,  and  passed 
upon  by  the  jury,  or  court,  or  a  referee,  the  verdict  or 
finding,  and  judgment  following  it,  are  competent  evi- 
dence of  that  fact  in  a  subsequent  writ  of  entry  between 
the  same  parties,  even  if  it  does  not  operate  as  a  conclu- 

1  Howard  v.  Albro,  100  Mass.  236.  Q.  B.  606;   Whittaker  v.  Jackson,  2 

»  Hoey  V.  Furman,  1  Pa.  St.  295;  44  Hurl.  &  C.  926. 
Am.  Dec.  129;   Sabins  v.   McGhee,  36  *  Rice   v.  King,  7   Johns.  20;    Mc- 
Pa.  St.   453;   McKnight  v.    Bell,   135  Knight  r.  Dunlop,  4  Barb.  36;  Camp- 
Pa'  St.  358.  bell  v.  Cross,  39  Ind.  155. 

3  Parker    V.  Leggett,  13  Rich.  171.  ^  Arnold    v.    Arnold,     17    Pick.    4; 

See  also  Chambers  v.  Dollar,  29  U.  C.  Morse  v.  Marshall,  97  Mass.  519. 


561  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  311 

sive  estoppel."^  In  Indiana,  a  recovery  in  an  action  of 
trespass  upon  title  to  land  being  put  in  issue,  no  judg- 
ment being  rendered  on  such  title  further  than  it  might 
be  supposed  to  enter  into  the  determination  of  the  action, 
and  no  decision  upon  the  title  being  essential  to  the  judg- 
ment, is  no  bar  to  an  action  of  ejectment.^  *'  So  where 
the  declaration,  in  an  action  of  trespass,  or  trespass  on 
the  case,  for  an  injury  to  land,  alleges  that  the  plaintiff 
was  well  seised  and  possessed  of  the  land  as  a  good  in- 
defeasible estate  in  fee-simple,  it  is  sufficient  on  the  trial 
for  the  plaintiff  to  show  a  lawful  possession  at  the  time 
when  the  injury  was  committed.  And  a  judgment  for 
the  plaintiff  in  such  a  case,  upon  a  general  issue,  is  con- 
clusive evidence  between  the  parties  and  their  privies 
only  of  such  title  as  the  plaintiff  was  bound  to  prove."  ^ 
The  fact  that  a  judgment  is  entered  for  nominal  damages 
does  not  depreciate  its  effect  as  res  judicata} 

While  it  is  not  possible  to  reconcile  all  the  decisions 
upon  this  subject,  perhaps  the  greater  portion  of  them 
are  not  as  conflicting  as  they  at  first  seem  to  be.  In  the 
great  majority  of  actions  of  trespass,  the  issues  in  efTccb 
tried  and  determined  are,  whether  the  plaintiff's  possession 
has  been  invaded,  and  what  damages,  if  any,  have  resulted 
from  such  invasion;  and  when  such  is  the  case,  it  is  ob- 
vious that  the  judgment  cannot  affect  the  title,  because 
title  has  not  been  considered  nor  determined,  nor  has 
any  fact  been  affirmed  necessarily  establishing  or  dis- 
proving the  title  of  either  party;  and  certainly,  unless  it 
affirmatively  appears  that  the  title  w^as  drawn  in  question 
and  decided,  and  that  its  decision  was  necessary,  a  judg- 
ment will  not  be  treated  as  concluding  either  party  upon 
the  question  of  title;^  and  that  the  title  cannot,  in  some 
of  the  states,  be  regarded  as  in  issue,  except  upon  a  spe- 
cial plea  of  soil,  or  freehold,  or  some  other   equivalent 

1  White  V.  Chase,  128  Mass.  158.  *  Casler  v.  Shipman,  85  N.  Y.  53.3. 

2  Haraus  v.  Goodman,  12  Ind.  629.  "*  Hasten  v.  Olcott,   101   N.   Y.  153; 
s  1  Hriliard  on  Torts,  498;    Parker     Hargua  v.  Goodman,  12  lud.  629. 

V.  Hotchkiss,  25  Conn.  321. 
JuDa.  I.  — 36 


§  312  THE    JUDGMENT    AS    AN    ESTOPPEL.  562 

pleading;^  but  that  when  such  plea  is  interposed,  or  when 
without  any  special  plea  the  rules  of  practice  in  the  state 
permit  the  title  to  be  received  in  evidence  and  to  be  con- 
sidered by  the  court  or  jury,  and  it  is  in  fact  received, 
considered,  and  made  the  basis  of  a  verdict  and  judgment, 
then  that  is  as  conclusively  settled  as  if  it  had  been  drawn 
in  question  and  decided  in  some  other  action.^  In  Michi- 
gan, it  is  insisted  that  a  judgment  in  trespass  cannot, 
under  any  circumstances,  operate  as  an  estoppel  in  an 
action  of  ejectment,  because  a  single  judgment  in  eject- 
ment is  not  there  conclusive  of  title,  and  it  would  be 
unreasonable  to  give  a  higher  effect  to  a  judgment  in 
trespass  than  to  one  in  ejectment.^ 

The  action  commonly  known  as  trespass  to  try  title  is, 
as  the  name  implies,  one  in  which  the  title  may  be  put 
in  issue  and  determined,  and  a  judgment  for  or  against 
either  party  is  conclusive  upon  all  issues  determined  by 
it,  and  precludes  each  from  afterwards  showing  that  the 
title  was  different  from  that  which  the  judgment  in  effect 
asserted  it  to  be.'* 

§  312.  Suits  for  Breach  of  Warranty.  —  The  successful 
prosecution  of  an  action  for  a  breach  of  warranty  of  a 
contract  necessarily  affirms,  for  all  future  actions,  the 
making  of  the  contract.^  A  judgment  for  the  defendant 
in  an  action  of  tort  for  a  false  representation  of  the 
soundness  of  a  horse  is  a  bar  to  a  subsequent  action  of. 
contract  on  the  defendant's  promise,  at  the  time  of  the 
exchange,  that  the  horse  was  sound.®  P.  brought  an 
action  in  chancery  to  set  aside  a  sale  and  to  enjoin  the 

1  Stapleton  v.  Dee,  132  Mass.  37  Mich.  2S5;  Rice  i-.  Auditor-General, 
279.  30  Mich.  13. 

2  Dunckle  v.  Wiles,  5  Denio,  296;  *  Caston  v.  Perry,  1  Bail.  533;  21 
Rogers  w.  Ratclifif,  3  Jones,  225;  Staple-  Am.  Dec.  482;  Fisk  v.  Miller,  20  Tt-x. 
ton  V.  Dee,  132  Mass.  279;  Shettles-  579;  Hall  v.  Wooters,  54  Tex.  231; 
worth  V.  Hughey,  9  Rich.  387;  Moran  Spence  v.  McGowan,  53  Tex.  30; 
V.  Mansur,  63  N.  H.  377;  Parker  v.  Graves  v.  Campbell,  74  Tex.  576; 
Le.'gett,  13  Rich.  171;  White  v.  Chase,  Thompson  v.  Lester,  75  Tex.  521. 

128  Mass.  158.  *  Barker  v.  Cleveland,  19  Mich.  230. 

^  Keyser  v.  Sutherland,  59  Mich.  *  Norton  v.  Uoherty,  3  Gray,  372;  63 
455;  Denuisout>.GeueseeCircuit  Judge,     Am.  Dec.  578. 


563  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  312 

collection  of  the  purchase-money,  on  the  ground  of  fraud 
practiced  by  the  vendor  in  making  the  sale.  Failing  in 
chancery,  he  commenced  suit  at  law  to  recover  damages 
for  breach  of  warranty.  It  was  held  that  the  issues  in  the 
two  actions  were  different;  that  while,  as  affirmed  by 
the  judgment  in  chancery,  the  vendor  may  not  have  been 
guilty  of  fraud,  it  nowise  necessarily  followed  that  he  did 
not  make  a  contract  of  warranty,  nor  that  such  contract, 
if  made,  was  not  broken.^  In  an  action  for  breach  of 
warranty  of  the  character,  quality,  or  quantity  of  goods 
sold,  if  it  is  conceded  that  the  contract  was  made  by  the 
parties,  and  has  been  fulfilled  by  the  vendee,  but  broken 
by  the  vendor,  the  issue  presented  to  the  court  or  jury  is, 
What  are  the  damages  occasioned  by  the  breach  of  the 
vendor's  warranty?  These  damages  must  be  estimated 
the  same,  whether  the  purchase-money  has  been  paid  or 
not.  After  a  recovery  by  the  vendee,  the  vendor  may 
maintain  an  action  for  the  whole  of  the  purchase-money, 
if  it  has  not  been  paid.  The  effect  of  the  judgment  for 
the  vendee  in  his  action  for  breach  of  warranty  is  to  es- 
tablish the  making  of  the  contract,  and  that  the  vendor 
has  suffered  in  a  prior  suit  all  damages  sustained  for  its 
non-performance.^  If  a  party  proceeds  upon  the  theory 
that  a  contract  has  been  totally  rescinded  by  the  failure 
of  a  vendor  to  perform  his  part  thereof,  the  judgment  is 
conclusive  on  the  vendee  of  all  damages  suffered  by  him, 
including  an  amount  advanced  on  the  contract,  and 
equally  conclusive  against  the  vendor  of  the  abrogation 
of  the  contract,  and  of  his  right  to  recover  any  sum 
stipulated  for  its  performance.'^  If  a  warrantee  recovers 
and  has  satisfaction  of  his  warrantor  on  his  covenant  to 
warrant  the  title  to  real  estate,  he  cannot  afterwards  re- 
gain possession  of  the  land  from  the  warrantor  on  that 
deed.     He  is  estopped  by  the  judgment  procured  in  his 

'  Pleasants?;.  Clements,  2 Leigh,  474.         »  Barker  v.  Cleveland,  19  Mich.  230; 
«  Barker  v.  Cleveland,  19  Mich.  230;     Freeuiau  v.  Clute,  3  Barb.  424. 
Perrine  v.  Serrell,  30  M.  J.  L.  458. 


§  313  THE    JUDGMENT    AS    AN    ESTOPPEL.  564 

own  behalf,  and  which  proceeds  upon  the  theory  that  the 
deed  did  not  convey  the  title.' 

§  313.  Divorce.  —  One  who  brings  a  bill  for  divorce, 
which,  upon  a  trial  on  the  merits,  he  fails  to  sustain, 
cannot  afterward  proceed  for  the  same  offense,^  though 
the  decree  simply  dismisses  his  bill.^  "  A  libel  for  divorce 
from  the  bonds  of  matrimony  and  a  libel  for  divorce  from 
bed  and  board  are  proceedings  having  a  direct  and  inti- 
mate relation  to  each  other.  They"  seek  for  different 
degrees  of  change  in  the  married  relation,  and  concern 
the  same  subject-matter."*  In  this  case  "the  libelant  in 
the  first  suit  asked  a  decision  of  the  court  uj)on  the  ques- 
tion "whether  she  had  been  so  cruelly  treated  as  to  justify 
a  judicial  sentence  of  separation  from  her  husband;  and 
the  judgment  given  was  that  she  was  not.  This  judgment 
was  plainly  a  bar  to  any  new  application  from  bed  and 
board,  upon  the  same  ground  up  to  that  time,  whether 
upon  the  same  or  different  evidence";  and  it  is  also  a  bar 
to  the  more  complete  remedy  of  divorce  from  the  bonds 
of  matrimony.  "A  sentence  of  divorce  necessarily  affirms 
the  marriage,  and  no  proceeding  can  afterward  be  had  to 
declare  the  marriage  void  ab  initio."^  A  decree  of  divorce, 
so  far  as  it  affects  the  status  of  the  parties,  is  considered 
as  a  judgment  in  rem,  and  if  free  from  fraud  and  collusion, 
is  binding  on  the  whole  world.**  But  except  in  relation  to 
the  status  of  the  parties,  it  is  subject  to  the  usual  rule  that 
estoppels  must  be  mutual,  and  does  not  conclude  any  third 
person  in  reference  to  the  facts  which  it  necessarily  affirms 
or  denies.  A  decree  dismissing  a  bill  for  divorce,  sought 
on  the  ground  of  alleged  adultery  of  a  wife,  is  not  evidence 
against  the  husband  that  the  wdfe  did  not  commit  adultery 

1  Porter  ?j.  Hill,  9  Mass.  34;  6  Am.  Dec.  *  Fera  v.  Fera,  98  Mass.  155. 

22;  Winslow  v.  Grindal,  2  Greenl.  64.  *  2  Bishop  on  Marriage  and  Divorce, 

^  2  Bishop  on  Marriage  and  Divorce,  sec.  705;  May  hew  v.  Mayhew,  3  Maule 

sec.  766.  &  S.  266. 

^  Thurston  v.  Thurston,  99  Mass.  30;  *^  2  Bishop  on  Marriage  and  Divorce, 

Brown   v.  Brown,  37   N.  H.   536;   75  sees.  755,  756. 
Am.  Dec.  154. 


565  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  313 

prior  to  the  petition  for  divorce  or  during  its  pendency, 
in  an  action  against  him  for  necessaries  furnished  to  her 
during  their  separation.  So  far  as  the  parties  to  this 
action  are  concerned,  the  matter  is  not  res  judicata.  The 
judgment  in  tlie  divorce  suit  not  being  binding  on  the 
plaintiff  in  this  suit,  he  cannot  avail  himself  of  it  for 
the  purpose  of  binding  the  defendant.^ 

If  a  husband  files  a  bill  for  divorce  on  the  ground  of 
desertion,  and  the  wife  by  her  answer  justifies  the  deser- 
tion on  the  ground  of  cruelty  and  other  grounds  sufficient 
to  entitle  her  to  a  divorce,  and  also  files  a  cross-bill  mak- 
ing the  same  allegations  and  praying  for  separate  main- 
tenance, and  the  issues  upon  the  husband's  bill  are  tried 
before  a  jury  and  a  verdict  given  against  him,  this  ver- 
dict is  not  conclusive  in  her  favor  upon  her  cross-bill  for 
maintenance,  because  the  verdict  against  the  husband 
may  have  been  upon  the  ground  that  his  wife's  aban- 
donment of  him  was  by  their  mutual  consent.^  So  the 
dismissal  of  a  bill  by  a  married  woman  for  reasonable 
support  and  maintenance  is  not  conclusive  against  her 
upon  a  bill  filed  against  her  by  her  husband  charging 
her  with  willful  and  continuous  desertion  without  any 
reasonable  cause;  for  though  the  former  judgment  may 
establish  that  her  living  apart  from  him  was  not 'without 
her  fault,  still  it  does  not  establish  that  she  willfully  de- 
serted and  absented  herself  without  reasonable  cause.' 
But  upon  such  issues  as  are  necessary  to  support  it,  a 
judgment  granting  or  denying  a  divorce  is  not  less  con- 
clusive than  any  other  judgment.*  If  the  complaint 
charges  the  defendant  with  committing  adultery  at  vari- 
ous  times,  between   certain   designated   dates,  and  with 

'  Gill  V.  Rearl,  5  R.  I.  343;  73  Am.  v.    Houcllette,    60   Me.    447;    58   Me. 

Dec.  73.     In  Maine  a  divorce  procured  513. 

by  one  of  the  spouses  is  no  bar  to  an  -  Wahle  v.  Wahle,  71  111.  510. 

action  for  divorce  subsequently  brought  ^  Umlauf  v.  Umlauf,  117  111.  580;  57 

by  the  other.     Each  may  obtain  a  di-  Am.  Rep.  880. 

vorce    from    the    other;    or   in    otiier  *  Prescott  v.  Fisher,  22  111.  390;  Slade 

words,  there  may  Ije  two  decrees  dis-  ?'.  Slade,  .'JS  Me.  157;  Kalisch  w.  Kalisch, 

solving   the  same  marriage:   Stilphen  9  Wis.  529;  Blain  v.  Blain,  45  Vt.  538. 


§   314  THE    JUDGMENT    AS    AN    ESTOPPEL.  506 

different  persons,  some  of  whom  are  alleged  to  be  un- 
known, a  judgment  for  the  defendant  bars  any  other 
action  based  upon  acts  of  adultery  claimed  to  have  been 
committed  at  or  between  those  dates,  but  as  to  charges  of 
offenses  subsequent  to  the  days  named  the  defendant  may 
be  proceeded  against.^  If  an  action  for  divorce  on  a  par- 
ticular ground  has  been  determined  against  plaintiff,  he 
cannot,  in  an  action  brought  against  him,  use  as  a  de- 
fense the  same  acts  upon  which  he  relied  as  a  cause  of 
action  in  the  former  suit.^ 

While  a  judgment  of  divorce  remains  in  force,  it  is 
conclusive  evidence  that  the  parties  have  ceased  to  be 
husband  and  wife,  and  therefore  precludes  any  further 
action  by  either  to  procure  a  divorce  from  the  other,'  It 
deprives  each  of  the  parties  of  all  rights  dependent  on 
their  marital  relations,  though  the  cause  of  divorce  is 
not  one  recognized  in  the  state  or  country  in  which  the 
judgment  is  offered  in  evidence.*  An  absolute  divorce 
dissolves  all  marriage  ties  and  destroys  the  relation  of 
husband  and  wife  as  completely  as  if  it  had  been  termi- 
nated by  death.^  The  wife  becomes  a  ferae  sole,^  and  if 
she  goes  into  her  late  husband's  house,  is  an  intruder 
who  may  be  barred  or  put  out/ 

§  314.  Alimony.  —  The  question  of  a  proper  allowance 
to  the  wife  is  one  of  the  issues  which  should  be  litigated 
in  the  action  of  divorce.  The  decree  is  therefore  conclu- 
sive on  this  subject,  and  the  wife  cannot  afterwards  main- 
tain a  suit  to  recover  additional  alimony.^  In  England 
the  rule  is  otherwise;  and  the  courts  there  can  allow  ali- 
mony on  a  petition  filed  after  the  decree  of  divorce." 

1  Vance  v.  Vance,  17  Me.  203.  Am.  Dec.  59;  Hunt  v.  Thompson,  61 

2  Lewis  V.  Lewis,  106  Mass.  309.  Mo.  148;  Miltimore  v.  Miltimore,  40  Pa. 

3  Hood  v.  Hood,  11  Allen,  196;  87  St.  151;  Porter  i-.  Porter,  27  Gratt.  599. 
Am.    Dec.    709;  Cooper   v.   Cooper,   7  *  Piper  v.  May,  51  Ind.  283. 

Ohio,  239.  '  Brown  v.  Smith,  83  111.  91;  Merrill 

*  Roth  V.  Roth,  104  111.  35;  44  Am.     v.  Merrill,  38  Mich.  707. 

Rep.  81;  Ross  v.  Ross,  129  Mass.  248;  «  pischli  v.  Fischli,  1  Blackf.  360;  12 

37  Am.  Rep.  321.  Am.  Dec.  251. 

*  Hays  V.  Sanderson,  7  Bush,  489;  »  Covell  v.  Covell,  L,  R.  2  Pro.  & 
State  V.   Weatherby,  43  Me.  258;  69  D.  411. 


567  THE    JUDGMENT    AS    AN    ESTOPPEL.       §§  315,  816 

§  315.  Partnership.  —  If  a  plaintiff  obtains  judgment 
against  two  as  copartners,  this  is  conclusive  in  a  second 
action  between  the  same  parties  of  the  fact  of  the  partner- 
ship of  the  defendants.^  And  where  defendants,  being 
sued,  pleaded  in  abatement  the  non-joinder  of  others,  whom 
they  claimed  to  be  their  copartners,  and  succeeded  in 
maintaining  their  plea,  the  record  in  this  suit  is  conclu- 
sive, in  a  subsequent  action  against  those  who  interposed 
the  plea  in  abatement,  that  the  several  persons  were  part- 
ners, as  alleged  in  the  plea.^ 

§  316.  Replevin.  —  In  consequence  of  the  rule  that  the 
conclusiveness  of  an  adjudication  is  not  affected  by  a 
change  in  the  form  of  the  action,  one  who  has  failed 
in  replevin  cannot  subsequently  maintain  an  action  of 
trespass^  or  trover*  for  the  taking  of  the  same  goods. 
A  judgment  in  replevin  designating  the  rights  of  the 
parties  is  as  conclusive  on  an  intervener  as  it  is  on  the 
plaintiff  or  on  the  defendant.^  A  recovery  in  replevin 
is  equally  conclusive  on  the  defendant,  whether  he  took 
issue  on  the  plaintiff's  allegation  of  ownership  or  con- 
fined himself  to  a  denial  of  the  taking  and  detention.^  A 
determination  of  the  rights  of  property  in  a  replevin  suit 
is  conclusive  in  an  action  on  the  replevin  bond.''  Judg- 
ment in  replevin  on  plea  of  non  detinet,  accompanied  by 
a  notice  that  the  goods  were  the  property  of  the  defend- 
ant, rendered  on  a  special  verdict,  finding  that  defendant 
unlawfully  detained  the  goods,  but  silent  on  the  issue  of 
property,  is  not  conclusive  on  the  title,  where  it  does  not 
appear  from  the  record  that  the  title  was  passed  upon, 
because  no  decision  in  relation  to  title  was  essential  to 
the  judgment,  a  mere  right  of  plaintiff  to  a  lien  being 
sufhcient  to  support  his  action.^     Whenever  the  defend- 

'  Dutton  V.  Woodman,  9  Cush.  255;         ^  Witter  v.  Fisher,  27  Iowa,  9. 
57  Am.  Dec.  46.  s  Wells     v.     MoCleuiiiiig,     23     111. 

■■*  Witmer  v.  Schlatter,  15  Serg.  &  R.  409. 
150-  '  Denny  v.   Reynolds,    24  Ind.   248; 

^  Ewald  V.  Waterhout,  .37  Mo.  G02.  Ernst  v.  Hat,nie,  8G  Ala.  ri02. 

♦  Hardin  v.  Paltnerloe,  28  Minn.  450;         '^  I^orird  of  S.  v.  M.  P.  R.  R.  Co.,  24 

Claflin  V.  Fletcher,  10  Bias.  231.  Wis.  125. 


§§  317,  318       THE    JUDGMENT    AS    AN    ESTOPPEL.  568 

ant  is,  under  the  pleadings,  entitled  to  try  the  title  and 
to  have  the  property  returned  to  him  in  case  he  succeeds, 
he  is  bound  to  present  his  evidence  of  title,  and  cannot 
seek  his  remedy  by  a  cross-suit.^  A  judgment  for  the  de- 
fendant, when  he  merely  traverses  plaintiff's  complaint 
without  asking  for  a  return  of  the  property,  establishes 
either  that  plaintiff  has  no  title  or  that  the  defendant  does 
not  unlawfully  detain.  In  order  to  give  proper  effect  to 
such  a  judgment,  it  must  be  shown  aliunde  on  what 
grounds  the  court  or  jury  proceeded  in  the  former  action,'^ 

§  317.  Trespass.  —  Judgment  for  the  defendant  in  an 
action  for  taking  goods  is  a  bar  to  a  subsequent  action  of 
assumpsit  for  the  value  of  the  same  goods.^  The  plea  of 
not  guilty,  in  an  action  of  trespass  de  bonis  asportatis,  puts 
nothing  in  issue  but  the  wrongful  taking.  The  simple 
verdict  of  not  guilty  applies  to  the  wrongful  taking,  and 
leaves  the  question  of  title  unsettled.*  A  recovery  by  the 
defendant  in  an  action  on  the  case  for  cutting  and  carry- 
ing away  wheat  bars  an  action  of  trespass  quare  clausum 
/regit  for  the  same  cause.^ 

§318.     Criminal   Cases  and   Former  Jeopardy. — The 

principles  applicable  to  judgments  in  criminal  cases  are, 
in  general,  identical,  so  far  as  the  question  of  estoppel  is 
involved,  with  the  principles  recognized  in  civil  cases. 
An  acquittal  or  a  conviction,  under  an  indictment  for  any 
offense,  is  a  bar  to  any  subsequent  indictment  substantially 
like  the  former.^  But  in  criminal  as  in  civil  actions,  it  is 
essential  that  the  judgment  be  on  the  merits,  and  not 
tainted  with  fraud.^  Thus  going  into  a  favorable  court, 
and  submitting  to  a  conviction,  in  order  to  escape  a  severe 
penalty,  is  no  bar  to  a-  bona  fide  prosecution.* 

^  McKnight  V.  Dunlop,  4  Barb.  36.  «  Phillipps  on  Evidence,    rote   292; 

»  Angel  V.  Hollister,  38  N.  ¥.^378.  State  v.  Little,  1  N.  H.  257-;  Common- 

'Ricei;.  King,  7  Johns.  20.  wealth    v.    Jackson,    2  Va.    Cas.   501; 

*  Harris  v.  Mmer,  28  111.  139.  Commonwealtli  v.  Alderman,  4  Mass. 

*  Johnson  v.  Smith,  S  Johns.  383.  477;  State  r.  Cole,  48  Mo.  70;  State  v. 
6Lesslie  v.  State,  18  Ohio  St.  390.  Colvin,  11  Hnmph.  599;  54  Am.  Dec. 
f  State  V.  Swepson,  79  N.  C.  632.  58;  note  to  State  v.  Solomons,  27  Am. 


569  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  318 

There  are  many  cases  in  wliich  though  a  defendant 
has  not  been  in  fact  acquitted,  yet  he  is  entitled  to  the 
same  protection  as  if  such  acquittal  had  taken  place. 
Before  the  calling  of  a  cause  for  trial,  and  until  the  jury  is 
sworn  to  try  it,  the  prosecuting  attorney  may  ask  that  a 
judgment  of  nolle  prosequi  be  entered;  ^  and  when  entered, 
like  a  judgment  of  nonsuit  in  a  civil  action,  it  merely  ter- 
minates the  action  in  which  it  is  entered,  without  affecting 
the  right  to  prosecute  another  action  for  the  same  cause.^ 

If  the  defendant  reaches  that  stage  in  the  cause  in  which 
he  is  regarded  as  in  jeopardy,  the  right  to  enter  a  judg- 
ment of  nolle  prosequi  ceases.  There  is  some  difference  of 
opinion  respecting  the  point  in  a  trial  at  which  the  de- 
fendant is  first  in  jeopardy.  There  are  a  few  authorities 
which  declare  him  not  to  be  in  jeopardy  until  after  the 
jury  has  returned  its  verdict;^  but  an  almost  overwhelm- 
ing preponderance  of  authorities  maintains  that  when  a 
defendant  is  placed  on  trial  before  a  competent  court,  and 
a  jury  is  impaneled  and  sworn,  he  is  in  jeopardy,  and 
there  is  no  longer  any  authority  to  enter  a  judgment  of 
nolle  prosequi,  and  he  must  be  treated  as  acquitted,  unless 
the  trial  is  permitted  to  proceed  until,  by  reason  of  the 
death  or  illness  of  the  judge  or  of  a  juryman,  or  the  in- 
ability of  the  jury  to  agree,  or  from  some  other  overruling 
necessity,  the  jury  is  discharged  without  a  verdict.*     Un- 

Dec.    475-478;   Watkins   v.   State,  68  Rep.  60;  Hines  v.  State,  24  Ohio  St. 

Ind.  427;  34  Am.  Rep.  273;  McFarland  134;  17  Am.  Rep.  4.36;  McFad.Ien  v. 

V.   State,  68  Wis.  400;   60  Am.  Rep.  Commonwealtli,  23  Pa.  St.  12;  62  Am. 

867;   State  v.  Simpson,  28  Miun.  66;  Dec.  SOS;  People  v.  Cage,  48  Cal.  323; 

41  Am.  Rep.  269.  17  Am.  Rep.  436;  People  v.  Hunckeler, 

1  M.'Fadden   v.  Commonwealth,    23  48   Cal.  3.34;   Teat  v.  State,  53  Miss. 

Pa.   St.  12;  62  Am.   Dec.   308;  Mount  453;  24  Am.  Rep.  70S;  Brink  v.  State, 

V.  State,   14  Ohio,  295;  45  Am.   Dec.  18  Tex.  App.  344;  51  Am.  Rep.  317; 

542;  State  v.   Champeau,   52  Vt.  313;  United  States  v.  Shoemaker,  2  McLean, 

36  Am.  Rep.  754.  114.      For  aiitliorities    showini?   when 

^  State  V.  Hornsby,  8  Rob.  (La.)  583;  the  defendant  is  so  far  placed  in  jeop- 

41   Am.   Dec.    314;    Commonwealth  v.  ardy  to  be  entitled  to  be  considered 

Briggs,  7  Pick.  179.  as  accjixitted,  unless  a  verdict  of  guilty 

*  People  V.  Coodwin,  18  Johns.  187;  has  been  found    against   him,   see  Ex 

9  Am.  Dec.  203;  State  v.  Moor,  Walk,  parte  Clements,   50  Ala.  459;    People 

(Miss.)  134;  12  Am.  Dec.  541;  Taylor  w.  v.   Olcott,   2  Johns.   Cas.   301;   1    Am. 

State,  35   Tex.  97;   United   States  v.  Dec.   168,  and   note;   State  v.   Wood- 


lOO. 


Perez,  9  Wheat.  579.  ruff,     2     Day,    504;    Am.     Dec.    H 

'  Lee  V.  State,  26  Ark.  200;  7  Am.     People   v.   Barrett,   2   Caines,  304;   2 


§   318  THE    JUDGMENT    AS    AN    ESTOPPEL.  670 

der  constitutional  provisions  universally  prevailing,  no 
person  is  permitted  to  be  placed  twice  in  jeopardy  for  the 
same  offense.^  Therefore,  if,  after  a  defendant  has  been 
placed  in  jeopardy,  a  nolle  prosequi  is  entered,  or  the  jury 
is  discharged  without  sufficient  cause  before  returning  a 
verdict,  the  defendant  is,  in  contemplation  of  law,  ac- 
quitted;^ and  when  he  is  again  placed  on  trial  the  only 
question  is,  whether  the  offense  for  which  he  is  sought 
to  be  tried  is  the  same  as  that  of  which  he  has  been 
acquitted. 

In  criminal  prosecutions,  as  in  civil  cases,  when  a  for- 
mer judgment  in  favor  of  the  defendant  is  pleaded  in  bar, 
the  most  satisfactory  test,  and  the  one  most  easily  applied, 
is  to  inquire  whether  evidence  competent  and  sufficient  to 
sustain  conviction  under  the  second  indictment  would 
have  been  equally  competent  and  sufficient  to  support  a 
conviction  on  the  indictment  under  which  the  defendant 
has  been  acquitted.  If  the  inquiry  must  be  answered  in 
the  affirmative,  then  the  plea  should  be  sustained.^  If,  on 
the  other  hand,  the  evidence  necessary  to  justify  a  con- 
viction under  the  second  indictment  could  not  have  sus- 
tained one  under  the  first,  the  plea  should  be  overruled. 
The  evidence  required  to  convict  under  the  second  indict- 
ment might  have  been  unavailing  if  offered  under  the 

Am.  Dec.  239;  People  v.  Goodwin,  18  monwealth,    111    Pa.    St.   1;   56   Am. 

Johns.  187;  9  Am.  Dec.  20.3;  Common-  Rep.  235. 

wealth  V.  Cook,  6  Serg.  &  R.  577;  9  ^  gt^te   v.  Norvell,  2  Yerg.  24;   24 

Am.    Dec.    46.5,    and   note;    State    v.  Am.  Dec.  458;  Campbell  ij.  People,  109 

Moor,  Walk.  (Miss.)  134;  12  Am.  Dec.  111.  565;  50  Am.  Rep.   621;   Black  v. 

541,  and  note;  State  v.  Burket,  2  Mill,  State,  36  Ga.  447;  91  Am.  Dec.  772; 

155;  12  Am.  Dec.  662;  Commonwealth  Parchman  v.  State,  2  Tex.   App.  228; 

V.  Purchase,  2  Pick.  521;  13  Am.  Dec.  28  Am.  Rep.  435;  State  v.  Larkin,  49 

452.  N.  H.  36;  6  Am.  Rep.  456;  Durham  v. 

'  State   V.  McKee,   1   Bail.  651;   21  People,   4   Scam.    172;   39   Am.    Dec. 

Am.    Dec.    499,    and    note;    State   v.  407;  Dinkey  v.  Commonwealth,  17  Pa. 

Cooper,  13  N.  J.  L.  361;  25  Am.  Dec,  St.   126;  55  Am.   Dec.  542;  Dominick 

490;  Black  v.  State,  36  Ga.  447;  91  Am.  v.  State,  40  Ala.  680;  91  Am.  Dec.  496. 

Dec.   772;  Dinkey  v.  Commonwealth,  The  true  test  is,  "  Could  the  prisoner, 

17  Pa.  St.  126;  55  Am.  Dec.  542.  upon   any  evidence  that   might   have 

^  O'Brian  v.  Commonwealth,  9  Bush,  been  produced,  have  been  convicted 
333;  15  Am.  Rep.  715;  Wright  v.  upon  the  first  indictment  of  the  offense 
State,  5  Ind.  290;  61  Am.  Dec.  90;  that  is  charged  in  the  second?":  Corn- 
State  V.  Wilson,  50  Ind.  477;  19  Am.  monwealth  v.  Bakeman,  105  Mass.  53; 
Rep.  719;  State  r?.  McGimsey,  80  N.  C,  State  v.  Horneman,  16  Kan.  452;  Price 
377;  30  Am.  Rep.  90;  Hilands  v.  Com-  v.  State,  19  Ohio,  423. 


571  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  318 

former  indictment,  because  of  the  entire  insufficiency  of 
that  indictment  to  support  a  conviction  of  any  crime  wliat- 
ever.  If  so,  his  former  trial  could  not  have  placed  the 
defendant  in  jeopardy,  because  he  was  not  accused  of  any 
criminal  offense,  and  not  being  accused  of  any  offense,  he 
has  not  been  acquitted  of  any,  and  his  plea  of  former  ac- 
quittal cannot  prevail.^  Though  no  nolle  prosequi  can  be 
entered  without  consent  of  the  defendant  after  the  sub- 
mission of  any  evidence  to  the  jury,  where  the  trial  is 
regularly  brought  on,  yet  if  the  arraignment  of  the  defend- 
ant is  omitted,  and  he  is  tried  without  any  plea,  he  is  not 
put  in  jeopardy,  because  there  is  no  issue  to  which  the 
evidence  can  be  applied,  and  a  nolle  prosequi  may  there- 
fore be  entered  without  his  consent.'^ 

Though  the  indictment  under  which  an  acquittal  has 
been  had  charges  an  offense  apparently  different  from 
that  charged  in  the  second  indictment,  still  the  plea  of 
former  acquittal  may  be  sustained  by  showing  that  the 
defendant  could  not  have  been  guilty  of  the  crime  with 
which  he  is  now  charged  without  also  being  guilty  of  that 
of  which  he  has  been  acquitted,  as  where  the  crimes 
charged  in  both  indictments  are  parts  of  the  same  crim- 
nal  act.  Hence  if  two  murders  are  committed  by  the 
same  act,^  or  several  pieces  of  property  are  embraced  in 
the  same  theft,*  or  destroyed  by  the  same  arson,^  an  ac- 
quittal of  the  murder  of  one  of  these  persons,  or  of  the 
larceny  or  arson  of  one  of  these  parcels  of  property,  is  an 
acquittal  as  to  the  other. 

Whoever,  being  convicted  on  a  valid  indictment,  avails 
himself  of  any  remedy  to  relieve  himself  of  the  conviction, 
on  the  ground  that  it  is  irregular  or  erroneous,  docs  so 
on  the  implied  condition  of  submitting  himself  to  a  new 

1  Pritchett  v.  State,  2  Sneed,  285;  62  439;  24  Am.  Rep.  708;  State  v.  Nash, 

Am.  Dec.  468;  State  v.  Ray,  Rice,   1;  86  N.  C.  eoO;  41  Am.  Rep.  742;  Clem 

.3.3  Am.  Dec.  90;  Black  v.  State,  36  Ga.  v.  State,  42  Iiid.  420;  13  Am.  Rep.  369. 

447;  91  Am.  Dec.  772.  ■*  Fisher  v.  Commonwealth,  1   Bush, 

■'  Bryans  v.  State,  34  Ga.  323.  211;  89  Am.  Dec.  620. 

*  People  w.  Majors,  65  Cal.  138;  52  =  State  v.  Colgate,  31  Kan.  511;  47 

Am.  Rep.  2'Jo;  Teat  v.  State,  53  Miss.  Am.  Rep.  507. 


§  319  THE    JUDGMENT   AS    AN    ESTOPPEL.  572 

trial,  whether  he  applies  for  it  in  the  court  below  or  not.^ 
Whenever  a  charge  includes  a  minor  charge,  an  acquittal 
of  the  former  includes  the  latter.  Thus  a  verdict  of  not 
guilty  on  an  indictment  for  murder  bars  a  prosecution  for 
manslaughter.^  This  rule  can  apply  only  when,  under 
the  indictment  for  the  greater  crime,  it  was  legally  possi- 
ble, under  evidence  properly  admissible  at  the  former  trial, 
to  have  convicted  the  defendant  of  the  lesser  crime,  in  bar 
of  prosecution  for  which  he  pleads  his  former  acquittal. 
Therefore,  in  those  states  in  which,  under  an  indictment 
of  one  as  principal,  it  is  not  possible  to  convict  him  of 
being  an  accessary,  his  acquittal  does  not  bar  his  subse- 
quent prosecution  and  conviction  under  an  indictment 
charging  him  with  being  an  accessary  before  the  fact  of 
the  commission  of  the  same  crime.^ 

§  319.  Judgments  in  Criminal  Cases  as  Evidence  in 
Civil. — The  record  of  a  conviction  or  of  an  acquittal  is 
not,  according  to  a  decided  preponderance  of  authority, 
conclusive  of  the  facts  on  which  it  is  based  in  any  civil 
action.*  Thus  an  action  of  trover  for  money  alleged  to 
be  stolen  is  not  prejudiced  by  the  acquittal  of  the  defend- 
ant on  a  prosecution  for  theft  in  taking  the  same  goods.^ 
A  was  indicted  and  convicted  of  obstructing  a  highway. 
After  the  removal  of  the  obstruction,  he  commenced  an 
action  against  B  for  using  the  same  highway.  In  this 
action  the  question  arose  whether  the  conviction  could 
be  pleaded  against  A  as  an  estoppel.  The  court  held  that 
it  could  not,  but  that  it  might,  however,  be  placed  in  evi- 
dence for  the  purpose  of  showing  that  the  locus  in  quo  was 
a  highway.®     The  chief  reason  for  excluding  the  record  of 

1  Stewart  v.  State,  13  Ark.  736.  Steel  v.  Cazeaux,  8  Mart.  (La.),  318;  13 

*  Phillipps  on  Evidence,  56;  Sanders  Am.  Dec.  288,  and  note;  Mead  v.  Bos- 
V.  State,  55  Ala.  42.  ton,  3  Cush.  404;  Cluff  v.  Mutual  B. 

3  State  V.   Larkin,  49  N.    H.  36;  6  L.  I.  Co.,  99  Mass.  317;  Cottinghain 

Am.  Rep.  456;  Rex  v.  Plant,  7  Car.  &  v.  W^eeks,  54  Ga.  275. 

P.  575;  State  v.  Buzzell,  58  N.  H.  257;  *  Hutchinson  v.  Bank  of  Wheeling, 

42  Am.  Rep.  586.  41  Pa.  St.  42;  SO  Am.  Dec.  596;  Beau- 

*  Betts  V.  New  Hartford,  25  Conn,  soliel  v.  Brown,  15  La.  Ann.  543. 
185;  1  Greenl.  Ev.,  sec.  537;  Corbley  «  Petrie  v.  Nuttall,  11  Ex.  569. 
V.  Wilson,  71  111.  209;  22  Am.  Rep.  98; 


573  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  319 

a  criminal  prosecution  from  evidence  in  a  civil  case  is 
that  the  parties  to  the  two  proceedings  are  different.  One 
who  has  been  damaged  by  some  criminal  act  of  another 
has  a  claim  for  remuneration,  independent  of  the  right 
of  the  public  to  proceed  against  the  offender,  and  to  in- 
flict the  penalty  prescribed  hy  law.  This  right  to  compen- 
sation in  damages  ought  not  to  be,  and  is  not,  dependent 
on  the  success  or  failure  of  the  prosecution  conducted  by 
the  people.  If  it  w^ere,  the  party  most  injured  would  be 
prejudiced  by  a  proceeding  to  w^hich  he  was  not  a  party, 
and  which  he  had  no  power  to  control.  A  person  con- 
victed of  any  offense  is  not  estopped  by  the  conviction 
from  disputing  the  facts  on  which  it  is  based  in  a  civil 
action,  because  his  adversary  in  the  civil  action  would  not 
have  been  barred  if  the  prosecution  had  terminated  in  an 
acquittal. 

Notwithstanding  the  weight  of  reason  and  of  precedent 
opposing  the  admission  of  any  record  of  a  criminal  cause 
as  an  estoppel  in  any  civil  action,  it  must  be  admitted  that 
the  precedents  are  not,  on  this  subject,  consistent  with 
one  another.  In  one  case  it  was  declared  not  to  be  an 
error  to  instruct  a  jury  on  a  trial  in  a  civil  action  for 
an  assault  and  battery  that  the  conviction  of  the  defend- 
ant on  an  indictment  for  the  same  offense  showed  that 
the  plaintiff  was  entitled  to  damages;^  in  another,  the 
record  of  the  conviction  of  the  defendant  upon  an  indict- 
ment for  adultery  was  received,  in  a  subsequent  action 
against  him  for  divorce,  as  evidence  both  of  the  adultery 
and  of  his  marriage  to  plaintiff;''  and  the  record  of  plain- 
tiff's conviction  is  doubtless  conclusive  evidence  against 
him,  in  an  action  for  malicious  prosecution  resulting  in 
such  conviction,  that  such  prosecution  was  not  without 
probable  cause.'     This  effect  of  such  conviction  continues 

1  Moses  V.  Bradley,  3  Whart.  27'2.  ^  Herman  on  Estoppel,  sec.  155;  Grif- 

See  Horwood  v.  .Smith,  2  Term  Rep.  fis  v.  Sellars,  3  Dev.  &  B.  492;  31  Am. 

750;  May  bee  V.  Avery,  18  Johns.  352.  Dec.   422;    Heruiau  v.    Bookcrhoff,    8 

^  Anderson  v.   Anderson,  4  Greenl.  Watts,  240. 
100;    16   Am.    Dec.    237;    Randall    v. 
Randall,  4  Greenl,  326. 


§  319  THE    JUDGMENT    AS    AN    ESTOPPEL.  574 

in  some  of  the  states,  though  a  new  trial  has  been  granted 
or  the  judgment  reversed  upon  appeal;*  in  others,  such 
conviction,  after  being  set  aside  upon  appeal,  or  by  the 
granting  of  a  new  trial,  is  prima  facie  evidence  only  of 
the  existence  of  probable  cause ;^  while  in  others  it  re- 
mains conclusive  evidence,  unless  shown  to  have  been 
procured  by  artifice  or  fraud.^ 

Of  course,  judgments  in  criminal,  like  those  in  civil, 
cases  are  always  competent  evidence  of  their  own  rendi- 
tion. Thus  in  an  action  for  malicious  prosecution,  the 
record  in  the  criminal  case  may  be  put  in  evidence  to  es- 
tablish the  facts  that  there  was  a  prosecution  resulting  in 
an  acquittal.  In  prosecutions  against  accessaries  or  against 
receivers  of  stolen  goods,  the  conviction  of  the  principal 
is  admissible  for  the  purpose  of  establishing  that  a  con- 
viction of  the  principal  has  been  had,  but  not  to  show  that 
a  crime  was  committed,  or  that  the  principal  is  in  fact 
guilty.*  So  a  judgment  of  conviction  founded  upon  a 
plea  of  guilty  may  be  received  in  a  civil  action  as  an  ad- 
mission by  the  ■  defendant  of  the  facts  confessed  by  his 
plea;^  but  this  is  manifestly  only  a  mode  of  proving  such 
admission,  and  cannot  be  regarded  as  estopping  the  de- 
fendant from  showing  that  notwithstanding  such  confes- 
sion and  conviction  he  was  not  guilty.*  So  it  has  been 
held,  under  a  prosecution  for  trespass  in  unlawfully  re- 
moving stakes  and  rails  from  a  boundary  line,  a  judgment 
in  a  civil  action  rendered  before  the  commission  of  the 
alleged  trespass,  in  an  action  to  which  defendant  w^as  a 
party,  was  conclusive  evidence  against  him  of  the  location 
of  such  line.' 

'  Whitney  v.    Peckliam,    15    Mass.  Kaye  v.  Kean,  18  B.  Mon.  839;  Wo- 

243;  Parker  V.  Huntington,  7  Gray,  36;  mack  v.  Circle,  29  Gratt.  192. 

66  Am.  Dec.  455;  Parker  v.  Farley,  10  *  Pliillipps  on   Evidence,   note  273; 

Cush.  279;  Cloon  v.  Gerry,   13  Gray,  Greenl.  Ev.,  sec.  537. 

203;  Denneheyw.  Woodsiim,  100  Mass.  *  Bradley    v.  Bradley,   11  Me.    367; 

197;  Griffis  v.  Sellars,  3  Dev.  &  B.  492>  Green  v.  Bedell,  48  N.  H.  546. 

31  Am.  Dec.  422.  *  Commonwealth  v.  Horton,  9  Pick. 

^  Goodrich  v.  Warner,  21  Conn.  432;  206;  Clark  v.  Irwin,  9  Ohio,  131. 

Burt  V.  Place,  4  Wend.  591.  '  Dorr  ell  v.  State,  83  lud.  357. 

^  Spring  V.  Besoue,  12  B.  Mon.  555; 


575  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  319  a 

Even  where  the  parties  are  the  same,  there  seems  to  he 
an  injustice  in  admitting  an  acquittal  in  a  criminal  pros- 
ecution in  evidence  in  a  civil  action,  because  to  procure  a 
conviction  in  a  criminal  prosecution  the  jury  must  he 
convinced,  beyond  a  reasonable  doubt,  while  in  a  civil 
action  it  is  their  duty  to  find  according  to  the  preponder- 
ance of  evidence.  Nevertheless,  the  authorities  indicate 
that  when  a  prosecution  is  conducted  by  and  in  the 
name  of  the  United  States,  and  results  in  an  acquittal,  the 
judgment  is  conclusive  in  favor  of  the  defendant  in  a  sub- 
sequent trial  of  a  suit  in  rem,  brought  by  the  United  States 
against  the  same  defendant,  in  which  the  issues  are  the 
same  as  those  involved  in  the  criminal  prosecution.^ 

The  conviction  of  a  defendant  may  be  offered  in  evi- 
dence in  a  subsequent  criminal  prosecution  against  him. 
If  so,  the  parties  to  the  two  prosecutions  and  the  rules 
of  evidence  applicable  to  them  being  the  same,  it  would 
appear  that  the  former  conviction  is  conclusive  evidence 
of  any  and  every  fact  necessarily  affirmed  by  it,  and  must 
be  received  as  such  in  the  second  prosecution.^ 

§  319  a.  Judgments  in  Civil  Cases  as  Evidence  in  Penal 
and  Criminal  Actions.  —  A  judgment  in  a  civil  case  must 
generahy  be  excluded  from  evidence  in  a  criminal  pros- 
ecution, because  the  parties  are  not  the  same,  and  were 
they  the  same,  it  would  be  improper  to  receive  a  judgment 
in  a  civil  case  as  evidence  of  the  commission  of  a  crime 
of  which  the  defendant  is  accused,  for  the  reason  that  such 
judgment  may  be  founded  on  a  mere  preponderance  of 
evidence  not  sufficient  to  satisfy  the  jury  beyond  a  reason- 
able doubt.'  And  where  a  suit  is  brought  to  recover  a 
forfeiture,  and  the  rule  of  evidence  in  criminal  cases  ap- 
plies, that  all  the  facts  material  to  sustain  such  suit  must 
be  proved  beyond  reasonable  doubt,  a  judgment  in  a  civil 
action  between  the  same  parties  is  not  admissible  in  favor 

1  Coffey  V.  U.   S.,  IIG  U.  S.  436.  »  Greenl.   Ev.,  sec.  537;   Britton  v. 

2  Com.  V.  Evaii.'^.  101  Mass.  25;  Com.     State,  77  Ala,  202. 
V.  Feldman,  131  Mass.  588. 


§  319  b  THE    JUDGMENT    AS    AN    ESTOPPEL.  576 

of  the  plaintiff  to  establish  any  fact  necessary  to  the  main- 
tenance of  a  civil  action.^ 

§  319  b.  The  Decrees  and  Orders  of  a  Probate,  Or- 
phans',  or  Surrogate's  Court,  made  in  the  exercise  of 
jurisdiction  conferred  upon  it  by  law,  are  as  final  and 
conclusive  as  the  judgment  decrees  or  orders  of  any 
other  court.  The  character  and  finality  of  res  judicata 
attach  to  their  decisions,  irrespective  of  the  nature  of 
the  issue  determined,  provided  always  that  the  court 
had  jurisdiction  to  determine  it.^  Hence,  whether  the 
adjudication  be  for  or  against  the  validity  of  a  will,  for 
or  against  granting  letters  of  administration,  allowing 
or  disallowing  an  account,  granting  or  refusing  to  grant 
a  homestead,  it  is  in  either  case  a  final  settlement  of 
the  matter  of  which  it  assumes  to  dispose,  and  it  can- 
not be  collaterally  attacked,  impeached,  or  avoided  in  the 
same  nor  in  any  other  court  by  any  of  the  parties  thereto, 
nor  by  any  person  in  privity  with  them.^  Courts  having 
the  management  and  disposition  of  the  estates  of  de- 
cedents, minors,  and  incompetent  persons  exercise  a 
jurisdiction  not  second  in  importance  to  that  possessed 
by  any  other  class  of  courts.     Their  judgments  and  other 

1  Riker  v.  Hooper,  35  Vt.  457;  82  Ferrie,  5  Blatchf.  225;  13  Wall.  465; 
Am.  Dec.  646.  Castro   v.    Richardson,    18    Cal.    478; 

'■'  Roach  V.  Martin's  Lessee,  1  Harr.  State   v.    McGlynn,    20   Cal.    233;   81 

(Del.)  548;  27  Am.   Dec.  746;  Wymaa  Am.  Dec.  118;  judson  v.  Lake,  3  Day, 

V.  Campbell,  6  Port.  219;  31  Am.  Dec.  326;   Gates   v.    Treat,    17   Conn.    392; 

677;  Bailey  v.  Delworth,  10  Smedes  &  Harrison  v.  Morehouse,  2  Kerr,  584; 

M.  404;  48  Am.  Dec.  760;  McDade  v.  Lewis  v.  Allred,  57  Ala.  628;  Hutton 

McDade,  7  Ga.  559;  50  Am.  Dec.  407;  v.  Williams,  60  Ala.  107;  Cummings  v. 

Merrill  v.    Harris,  26  N.  H.   142;    57  Cummings,  123  Mass.  270;  Johnson  v. 

Am.  Dec.  359;   Johns    v.   Hodges,  62  Beazley,  65  Mo.  250;  27  Am.  Rep.  276; 

Md.  525.  Sheetz  v.  Kirtley,  62  Mo.  417;  Jones  v. 

2  Harris  v.  Colquit,  44  Ga.  663;  Chase,  55  N.  H.  234;  Roderigas  r.  East 
Rose  V.  Lewis,  3  Lans.  320;  Stiles  v.  River  Savings  Inst.,  63  N.  Y.  460;  20 
Burch,  5  Paige,  135;  Womack  v.  Wo-  Am.  Rep.  555;  Connolly  v.  Connolly,  9 
mack,  23  La.  Ann.  351;  Rudy  v.  Ul-  Rep.  830;  Hood's  Estate,  90  N.  Y.  512; 
rich,  69  Pa.  St.  177;  8  Am.  Rep.  238;  Hutton  v.  Laws,  55  Iowa,  710;  Hodge 
Penderleath  v.  McGillivray,  Stu.  470;  v.  Fabian,  31  S.  C.  212;  17  Am.  St. 
Shropshire  v.  Probate  Judge.  4  How.  Rep.  25;  Withers  v.  Patterson,  27  Tex. 
(Mi-s.)  142;  Cole  w.  Leak,  31  Miss.  131;  491;  86  Am.  Dec.  643;  Turner  t'.  Ma- 
Crippen  v.  Dexter,  13  Gray,  330;  Ab-  lone,  24  S.  C.  398;  Cecil  v.  Cecil,  19 
bott  V.  Bradstreet,  3  Allen,  587;  Simp-  Md.  72;  81  Am.  Dec.  626;  Wall  w. 
son  V.  Norton,  45  Me.  281;  Davie  v.  Wall,  123  Pa.  St.  545;  10  Am.  St. 
McDaniel,    47   Ga.    195;    CaujoUe    v.  Rep.  549. 


577  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  319  b 

decisions  necessarily  determining  issues  of  fact  submitted 
to  tliem  are  equally  conclusive  with  those  of  other  courts. 
This  principle  has  been  applied  in  a  variety  of  circum- 
stances and  proceedings.  Perhaps  the  only  well-settled 
exception  to  it  is  regarding  the  issue  expressly  or  impliedly 
presented  in  every  case  in  which  letters  testamentary  or 
of  administration  are  asked  for;  namely,  the  issue  re- 
specting the  death  of  the  person  upon  whose  supposed 
estate  administration  is  sought.  The  granting  of  such 
letters  is  an  adjudication  of  such  death.  Nevertheless, 
the  issuing  of  the  letters  and  the  order  or  decree  granting 
them  are  no  more  than  pruna  facie  evidence  of  such  death, 
and  cannot  estop  the  supposed  decedent  or  his  successors 
in  interest  from  showing  that  he  was  in  fact  alive.^ 

Where  the  rules  of  the  common  law  upon  this  subject 
still  prevail,  a  will,  so  far  as  it  affects  real  property,  is  left 
to  be  proved  or  disproved  the  same  as  an  ordinary  con- 
veyance thereof,  and  the  fact  that  it  has  been  granted  or 
refused  admission  to  probate  is  entirely  immaterial.^  In 
some  portions  of  the  United  States  a  will  may  be  admitted 
to  probate  in  common  form,  that  is,  without  any  proceed- 
ing bringing  all  the  parties  interested  before  the  court; 
and  where  this  is  the  case,  it  is  not  conclusive  on  the 
parties  not  represented.  If  a  proceeding  for  the  probate 
of  a  will  contemplates  that  all  the  parties  interested  shall 
have  notice,  actual  or  constructive,  of  the  application  for 
its  probate,  and  an  opportunity  to  resist  such  probate,  the 
decision  of  the  court  is  conclusive  as  to  every  species  of 

'  Tisdale  v.  Ins.   Co.,  26  Iowa,  170;  Am.   Dec.    527;    Peeble's   Appeal,    15 

96  Am.  Dec.  136;  Lancaster  v.  Wash-  Serg.  &  R.   42;  Morgan  v.   Dodge,  44 

ington  L.  I.  Co.,  62  Mo.  121;  Conning-  N.  H.  259;  82  Am.  Dec.  213;  Bolton  v. 

ham  V.  Smith,  70  Pa.  St.  450;  wHte,  sec.  Jacks,  6  Kob.   (N.  Y.)  166.     Contra, 

120;  Epping  v.  Robinson,  21  Fla.  36;  Roderigas  v.  East  River  Sav.  Inst.,  63 

Melia   V.  Simmons,   45  Wis.    334;   .30  N.  Y.  460;  20  Am.  Rep.  555. 
Am.  Rep.   746;  Jochumsen  v.   Suffolk         '^  Doe    v.     Calvert,     2    Camp.     3S9; 

Savings  Bank,  3  Allen,  87;  McPherson  Tompkins  v.  Tompkins,  1   Story,  547; 

V.  Cunliff,  11   Serg.  &  R.  422;  14  Am.  Rowland  v.  Evans,  6  Pa.  St.  435;  Asay 

Dec.  642;  Wales  v.  Willard,  2  Mass.  v.  Hoover,  5  Pa.  St.  21;  45  Am.  Dec. 

120;  Griffith  v.    Frazier,  8  Cranch,   9;  713;    Smith  v.   Bonzall,   5    Rawle,   80; 

Allen   V.   Dundas,  3   Term  Rep.    125;  HoUiday  v.  Ward,  19  Pa.  St.  490. 
Duncan   v.   Steuart,  25   Ala.  408;   60 
JUDG.  L  — 37 


4 

§  319  b  THE    JUDGMENT    AS    AN    ESTOPPEL.  578 

property,  unless  the  statute,  in  express  terms,  gives  the 
parties,  or  some  of  them,  further  opportunity  to  make  a 
contest.'  Furthermore,  the  admission  of  a  will  to  probate 
is,  as  to  the  parties  bound  thereby,  conclusive  evidence  of 
the  facts  necessary  to  uphold  it,  such  as  the  testamentary 
capacity  of  the  testator,^  or  his  due  execution  of  the  will,^ 
and  of  the  jurisdictional  facts  authorizing  the  court  to 
hear  "and  determine  the  application.*  So  a  refusal  to  ad- 
mit a  will  to  probate  is  conclusive  of  the  facts  necessary 
to  support  it;^  and  if  it  w^as  upon  the  merits,  may  further 
conclude  the  parties  upon  the  question  that  the  testator's 
residence  was  such  that  the  court  had  jurisdiction  to  hear 
and  determine  the  application  for  probate.®  The  granting 
of  letters  of  administration  is  also  a  judicial  decision,  and, 
as  such,  conclusive  upon  all  the  issues  necessarily  deter- 
mined by  it.' 

Executors,  administrators,  and  guardians  are,  in  many 
of  the  states,  required  to  make  reports  of  their  acts  and  of 
the  condition  of  the  estates  in  their  care,  accompanied 
with  accounts  of  their  receipts  and  disbursements,  either 
yearly  or  at  other  stated  intervals,  and  the  courts  to  which 
such  accounts  are  made  are  required  to  allow  or  disallow 
them.  The  action  of  the  court  is  generally  ex  parte,  and 
for  that  reason  is,  in  most  of  the  states,  not  deemed  a  con- 
clusive adjudication  estopping  the  parties  in  subsequent 

»  Redmond  v.   Collins,  4   Dev.  430;  *  In  re  Griffith's  Estate,  84  Cal.  107; 

27   Am.  Dec.  208;   Wall  v.  Wall,   30  Thornton   v.  Baker,   15   R.   I.  553;   2 

Miss.  91;  64  Am.  Dec.  147;  Anderson  Am.  St.  Rep.  925. 

V.    Green,    46   Ga.    361;    Brigham    v.  »  gc^^ifc^  ^   Schultz,  10  Gratt.  358; 

Fayerweather,  140  Mass.  411;  Warfield  60  Am.  Dec,  335;  Laughton  v.  Atkins, 

V.     Fox,    53   Pa.    St.    382;    O'Dell    v.  1  Pick.  535. 

Rogers,  44  Wis.  136,  173;  Newman  v.  ®  Thornton  v.  Baker,  15  R.  I.  553;  2 

Waterman,  63  Wis.  612;  53  Am.  Reo.  Am.  St.  Rep.  925. 

310;  Wilson  v.  Gaston,  92  Pa.  St.  207;  '  Barclift   v.    Treece,    77   Ala.    628; 

Scott  V.   Calvitt,   3  How.    (Miss.)   148;  Davis  v.    Greeve,    32    La.    Ann.    420; 

Brock  V.  Frank,  51  Ala.  85;  Norvell  v.  Sims    v.    Walters,    35    La.    Ann.   442; 

Lessneur,    .33    Gratt.    222;    Dublin   v.  Poullain  v.  Poullain,  72  Ga.  412;  Mc- 

Chadbourn,  16  Mass.  433.  Farland  v.  Stone,  67  Vt.   165;   14  Am. 

3  Parker  V.  Parker,  11  Gush.  519;  Vt.  Dec.   325;    Lawrence   t\   Englesby,   24 

Baptist  Convention  v.  Ladd,  59  Vt.  5.  Vt.  42;  Naylor  v.  Moffatt,  29  Mo.  126; 

3  Moore  v.  Tanner,  5  T.  B.  Mon.  42;  Savasje  v.  Benham,  17  Ala.  119;  Palmer 

17  Am.  Dec.  35;  Roach  v.  Martin,   1  v.  Oakley,  2  Doug.  (Mich.)  433;  47  Am. 

Harr.  (Del.)  548;  27  Am.  Dec.  746.  Dec.  41. 


679  THE   JUDGMENT   AS    AN    ESTOPPEL.  §  319  b 

stages  of  the  proceedings  from  showing  that  the  account 
as  settled  was  not  correct.^  If,  however,  the  annual  or 
partial  account  is  excepted  to  by  some  person  interested 
therein,  and  the  exception  is  heard  and  determined  by  the 
court,  its  decision  is  as  conclusive  as  between  the  parties 
contesting  and  the  executor  or  administrator  as  if  the 
account  were  final.^  In  a  few  of  the  states,  a  partial  ac- 
count and  its  allowance,  whether  excepted  to  or  not,  are 
conclusive  in  subsequent  proceedings  as  to  all  the  items 
set  forth  therein.^  Orders  or  decrees  settling  final  ac- 
counts entered  after  giving  notice  in  the  manner  required 
by  statute  are  conclusive  evidence  that  the  amounts 
found  to  be  due  thereby  correctly  represent  the  indebted- 
ness of  the  party  whose  account  is  settled  to  the  estate 
in  his  care.* 

When  a  court  grants  an  order  of  sale,  and  in  pursuance 
of  such  order  the  property  thereby  authorized  to  be  sold 
is  sold,  the  purchaser,  to  maintain  his  title,  is  not  required 
to  re-establish  the  facts  which  the  court  must  have  found 
to  be  true  before  it  entered  such  order,  nor  yet  to  defend 
the  lefral  conclusions  which  the  court  drew  from  such 
facts.  If  any  errors  were  committed,  as  in  the  admission 
or  rejection  of  evidence,  or  in  making  findings  of  fact, 
express  or  implied,  not  sustained  by  the  evidence,  or  in 
reaching  conclusions  not  warranted  by  the  facts  found, 

1  Walls  V.  Walker,  37  Cal.  424;  99  McLellan'g   Appeal,    76   Pa.   St.   231; 

Am.  Dec.  290;  Mix's  Appeal,  35  Conn.  Foss's  Appeal,  105  Pa.  St.  258. 

121;  95  Am.  Dec.  222;  Picot  v.  Bid-  *  App  v.  Dreisbach,  2  Rawle,  287;  21 

die's  Ex'r,  35  Mo.   29;  86  Am.  Dec.  Am.    Dec.    447;    Stubl.lefield   r.    Mc- 

134;  Liddel  v.  McVickar,  6  N.  J.  L.  Raven,  5  Smedes  &  M.   130;  43  Am. 

44;  19  Am.  Dec.  .369;  Folger  v.  Heidel,  Dec.  502;  McWilliams  v.  Kalbach,  55 

60  Mo.  2S8;   West  r.  West,   75  Mo.  Iowa,   110;  Williams  r.  Robinson,  63 

204;  Lucich  v.   Medin,  3  Nev.  93;  93  Tex.  576;  Brodrib  v.  Brodril),  56  Cal. 

Am.  Dec.  376;  Clark  v.  Cross,  20  Iowa,  563;    Garton  v.    Botts,    73   Mo.    274; 

60;  State  v.  Wilson,  51  Ind.  96;  Sturte-  Shackelford  v.  Cunningham,   41   Ala. 

vant  V.  Tallman,  27  Me.  85;  Bantz  v.  203;  Commonwealth  v.  Gracey,  96  Pa. 

Bautz,  52  Md.  686;  Watts  v.  Watts,  St.    70;   Ringgold   v.    Stone,  20  Ark. 

38  Ohio  St.  480.  526;  Holden  v.  Lathrop,  65  Mich.  652; 

^Stayner's  Case,  33  Ohio  St.  481;  Hatcher  v.  Dillard,  70  Ala.  .343;  Sim- 
Watts  V.  Watts,  .38  Ohio  St.  480;  Co-  mons  v.  Goodell,  63  N.  H.  456;  Sever 
burn  V.  Loomis,  49  Me.  406;  Clement's  v.  Russfill,  4  Cush.  513;  50  Am.  Dec. 
Appeal,  49  Conn.  5.35.  811;    Duusford  v.   Brown,   23    S.    0. 

•Rhoada'a  Appeal,  39  Pa.  St.  186;  328. 


§  319  b  THE    JUDGMENT    AS    AN    ESTOPPEL.  680 

the  remedy  of  any  party  prejudiced  thereby  is  by  motion 
for  a  new  trial,  or  by  some  other  revisory  or  appellate 
proceeding.  Failing  to  resort  to  this  remedy,  the  order 
of  sale  must  be  resjDected,  and  cannot  be  destroyed  by  any 
collateral  assault.^  Hence  the  sale  cannot  be  nullified  by 
proof  that  there  was  no  necessity  therefor,  nor  by  any 
other  proof  which  involves  a  re-examination  of  the  issues 
necessarily  involved  in  the  order  of  sale.^  There  are 
some  cases  which  appear  to  permit  a  re-examination  of 
the  legal  conclusions  drawn  by  the  court  in  ordering  the 
sale.  Thus  sales  were  held  void  in  one  instance  because 
ordered  to  raise  funds  to  pay  debts  barred  by  the  statute 
of  limitations,'  and  in  another  because  the  order  did  not 
show  any  necessity  for  the  sale.*  If  these  and  kindred 
cases  can  be  maintained  upon  principle,  it  must  be  on 
the  ground  that  the  petitions  and  orders  were  so  deficient 
in  essential  elements  that  they  did  not  disclose  any  case 
calling  for  judicial  action,  and  therefore  left  the  court 
without  jurisdiction. 

If  an  order  of  sale  has  been  executed  by  the  sale  of  the 
property,  the  statutes  generally  require  that  the  proceed- 
ings be  reported  to  the  court,  whose  duty  it  is  to  hear  the 
report  and  the  evidence  ofi'ered,  and  either  to  confirm  or 
vacate  the  sale.  If  it  confirms  the  sale,  its  order  is  an 
adjudication  that  the  prior  proceedings  were  regular  and 
valid,  and  that  the  sale  ought  to  be  confirmed,  and,  as 
such,  is  conclusive  on  all   the  parties  before   the  court.* 

1  Myers  v.  Davis,  47  Iowa,  325;  209;  Trumble  v.  Williams,  18  N.  C. 
Fleming  v.  Bale,  23  Kan.  88;  JklcDade  144;  Saltonstall  v.  Riley,  28  Ala.  164; 
V.  Burch,  7  Ga.  559;  50  Am.  Dec.  407;  65  Am.  Dec.  334;  Fordr.  Ford's  Adm'r, 
Long  V.  Weller,  29  Gratt.  347;  Gray-  68  Ala.  141;  Thomson  v.  Blanchard,  2 
son  V.  Weddle,  63  Mo.  523;  Pratt  v.  Lea,  528. 

Houghtaling,  45  Mich.  457;  Weyer  v.  ^  Heath  v.    Wells,   5  Pick.    139;   16 

Second  Nat.  Bank,  57  Lid.  198;  Gard-  Am.  Dec.  383. 

ner  v.  Mawney,  95  III.  552;  Merrill  v.  *  Wyatts  v.  Rambo,  29  Ala.  510;  68 

Harris,   26  N.  H.   143;   57  Am.   Dec.  Am.  Dec.  89. 

359.  *  Montgomery  v.  Somory,  99   U.  S. 

2  Bowen  v.  Bond,  SO  111.  351;  Allen  482;  Willis  v.  Nicholson,  24  La.  Ann. 
V.  Shepard,  87  111.  314;  Myers  v.  Davis,  545;  Cockey  v.  Cole,  28  Md.  276;  92 
47  Iowa,  325;  Arrowsmith  v.  Harmon-  Am.  Dec.  604;  Hotchkiss  v.  Cutting, 
ing,  42  Ohio  St.  254;  Davis  v.  Gaines,  14  Minn.  537;  Wilkerson  v.  Allen,  67 
104  U.  S.  386;  Abbott  v.  Curran,  98  Mo.  502;  Freeman  ou  Void  Judicial 
N.  Y.  665;  CromM-ell  v.  Hull,  97  N.  Y.  Sales,  sec.  44. 


581  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  319  b 

Though  the  statute  declares  that  "all  sales  must  be,  under 
oath,  reported  to  and  confirmed  by  the  court  before  the 
title  to  the  property  sold  passes,"  if  the  order  of  confirma- 
tion states  "that  the  sale  was  duly  verified  by  affidavit," 
the  validity  of  the  sale  is  established,  and  cannot  be  dis- 
proved by  producing  the  original  return  and  showing 
that  no  verification  accompanied  it.^  If,  after  the  sale  is 
confirmed,  the  purchaser  fails  to  pay  the  amount  of  his 
bid,  and  thereupon  is  served  with  notice  of  a  motion  for 
a  resale  at  his  risk,  and  no  resistance  being  made  to  the 
motion,  such  resale  is  ordered,  and  an  action  is  thereafter 
brought  against  the  purchaser  for  the  difference  between 
the  price  realized  by  the  resale  and  that  bid  by  him,  he 
cannot  defend  the  action  by  showing  that  the  adminis- 
trator made  false  statements  at  the  first  sale;  that  the 
decedent  did  not  own  the  property  sold;  and  that  the 
administrator  had  released  him  from  all  liability  to  pay 
the  purchase  price  and  told  him  when  he  gave  him 
notice  of  the  resale  that  he  would  not  seek  to  hold  him 
liable.  All  these  defenses  are  precluded  by  the  order 
of  resale  made  upon  due  notice.^ 

An  order  making  a  final  distribution  of  an  estate  to  the 
persons  whom  it  finds  entitled  thereto  as  heirs,  devisees, 
or  legatees  of  the  decedent  is  also  a  conclusive  adjudica- 
tion, if  upon  sufficient  notice,  that  the  persons  to  whom 
distribution  is  so  made  are  the  only  persons  entitled 
to  the  property  distributed  as  such  heirs,  devisees,  or 
legatees,^  but  does  not  estop  third  persons  from  asserting 
assignments  or  conveyances  of  the  property  made  to  them 
by  the  distributees  before  the  entry  of  the  decree  of  dis- 
tribution.* 

The  validity  of  orders  and  decrees  made  by  courts  ex- 
ercising jurisdiction  over  the  estates  of  decedents,  minors, 
and  incompetent  persons  is,  however,  as  in  all  other  cases, 

>  Dennis  v.  Winter,  G3  Cal.  16.  of  Probate   v.  Robins,  5   N.  H.  246; 

*Brummagitnv.  Aml)rose,48  Cal. 366.  Kcllogt^  v.  John.son,  88  Conn.  2(i9. 
*  Loring  v.  Steineman,  1   Met.  204;         '  Cliover   v.    Ching    Hong    Toy,   82 

Extou  V.  Zule,  14  N.  J.  Eq.  501;  Judge  Cal.  08. 


§  320  THE    JUDGMENT   AS    AN    ESTOPPEL.  682 

dependent  on  their  having  jurisdiction  over  the  persons 
and  subject-matters  affected  thereby,  and  whenever  the 
statute  requires  a  particular  notice  to  be  given,  and  the 
omission  to  give  it  is  conceded,  the  order  or  decree  based 
thereon  must  be  treated  as  void/  In  truth,  matters  are 
regarded  as  jurisdictional  in  the  probate,  surrogate,  and 
orphans'  courts  which  are  not  so  regarded  in  other  courts. 
Thus  a  court  ordering  a  sale  of  property  is,  according  to 
the  majority  of  the  authorities,  without  jurisdiction  to  do 
so  if  the  petition  therefor  was  not  presented  by  a  person 
having  authority  to  present  it,^  or  was  not  sufficient  in 
substance  to  support  the  order  sought,^  or  did  not  sub- 
stantially contain  a  statement  of  all  the  matters  required 
by  statute  to  be  stated  therein.* 

§  320.  Awards  of  Arbitrators. — The  effect  of  a  valid 
award  upon  the  matters  submitted  to  the  arbitrators  is 
equivalent,  so  far  as  the  question  of  estoppel  is  concerned, 
to  the  effect  of  valid  judgment.'  "No  satisfactory  reason 
can  be  assigned  why  a  judgment  as  an  act  by  the  law 

1  Ruth  V.  Oberbrunner,  40  Wis.  238;  *  Guy  v.  Pierson,  21  Ind.  18;  Verry 
Crosley  v.  Calhoon,  45  Iowa,  557;  v.  McClellan,  6  Gray,  535;  06  Am. 
Michel  V.  Hicks,  19  Kan.  578;  27  Am.  Dec.  423;  Tenny  v.  Poore,  14  Gray, 
Rep.  161.  502;     77    Am.    Dec.    340;    Wilson   v. 

2  Miller  v.  Miller,  10  Tex.  319;  Hastings,  66  Cal.  243;  Boland's  Estate, 
Washington  v.  McCaughan,  34  Miss.  55  Cal.  310;  Rose's  Estate,  63  Cal.  346; 
304;  Pryor  v.  Downey,  50  Cal.  389;  19  Wright  v.  Edwards,  10  Or.  298;  Hayes 
Am.  Rep.  656;  Long  v.  Burnett,  13  v.  McNealy,  16  Fla.  409;  Ryder  v. 
Iowa,  28;  81  Am.  liec.  410;  Withers  Flanders,  .39  Mich.  336;  Young  v. 
V.  Patterson,  27  Tex.  501;  86  Am.  Dec.  Young,  12  Lea,  335;  Arnett  v.  Bailey, 
643.  60  Ala.  435;   Gregory  v.  McPherson, 

*  Bompart  v.    Lucas,    21    Mo.    598;  13  Cal.  562;  Gregory  v.  Talier,  19  Cal. 

Farrar  v.  Dean,  24   Mo.  16;   Wyatt's  397;  79  Cal.  219;  Bree  v.  Bree,  51  111. 

Adm'r  v.  Rambo,  29  Ala.  510;  68  Am.  367;  Freeman  on  Void  Judicial  Sales, 

Dec.  89;  Newcomb  v.  Smith,  5  Ohio,  sees.  11,  12. 

448;  Withers  v.  Patterson,  27  Tex.  499;  ^  2  Smith's  Lead.  Cas.  671 ;  Jarvis  v. 
86  Am.  Dec.  643;  Ikelheimer  v.  Chap-  Fountain  W.  Co.,  5  Cal.  179;  John- 
man,  32  Ala.  676;  Hall  v.  Chapman,  ston  v.  Paul,  23  Minn.  46;  Kane  v. 
35  Ala.  553;  Pryor  v.  Downey,  50  Cal.  Fond  du  Lac,  40  Wis.  495;  Whitlock 
389;  19  Am.  Rep.  656;  Wilson  v.  v.  Crew,  '.:8  Ga.  289;  Hostetter  v. 
Armstrong,  42  Ala.  168;  94  Am.  Dec.  Pittsburgh,  107  Pa.  St.  419;  Curley  v. 
635;  Spencer  v.  Jennings,  114  Pa.  St.  Dean,  4  Conn.  259;  10  Am.  Dec.  140: 
613;  Stuart  v.  Allen,  16  Cal.  473;  76  Johnson  v.  Noble,  13  N.  H.  286;  38 
Am.  Dec.  551;  Bloom  v.  Burdick,  1  Am.  Dec.  485;  Shackleford  v.  Purket, 
Hill,  130;  37  Am.  Dec.  299;  Morris  2  A.  K.  Marsh.  485;  12  Am.  Dec.  432; 
V.  Hogle,  37  111.  150;  87  Am.  Dec.  Chapline  r.  Overseers,  7  Leigh,  231;  30 
243.  Am.  Dec.  504. 


583  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  320 

should  estop  the  parties,  and  an  award,  which  is  another 
name  for  a  judgment,  which  the  parties  have  expressly 
stipulated  should  he  final  as  to  the  subjects  submitted, 
should  not  be  equally  conclusive."^ 

The  authorities  disagree  in  relation  to  the  effect  of  an 
award,  upon  a  submission  of  all  demands,  on.  a  matter 
w^hich  in  fact  was  never  presented  to  the  arbitrators.  In 
New  York,  the  position  is  taken  that  "  it  would  be  a  very 
dangerous  precedent  to  allow  a  party,  on  a  submission 
so  general,  intended  to  settle  everything  between  the  par- 
ties, to  lie  by  and  submit  only  part  of  his  demands,  and 
then  institute  a  suit  for  the  part  not  brought  before  the 
arbitrators.  The  object  of  the  submission  was  to  avoid 
litigation;  and  neither  party  is  at  liberty  to  withhold  a 
demand  from  the  cognizance  of  the  arbitrators  on  such 
submission,  and  then  to  sue  for  it.'"^  Just  and  reason- 
able as  this  view  seems,  it  has  not  met  with  general 
approbation.  On  the  contrary,  it  appears  to  be  well  settled 
by  a  decided  preponderance  of  authorities  that,  notwith- 
standing the  general  language  of  the  submission,  the 
award  will  conclusively  determine  nothing  not  in  fact 
submitted,  and  that  the  prima  facie  final  effect  of  the 
award  may  be  overthrown  by  any  evidence  which  suffi- 
ciently proves  that  a  specified  matter  was  never  presented 
to  the  arbitrators.'  But,  in  Massachusetts,  if  a  general 
submission  of  all  demands  is  made,  it  is  in  the  power  of 
either  of  the  parties  to  insist  upon  the  presentation  of  any 
claim  held  by  his  adversary;  and  if  any  party,  upon  being 
requested  to  place  any  matter  before  the  arbitrators,  de- 
clines to  do  so,  he  is  precluded  from  ever  afterward  assert- 

'  Brazill  v.  Isham,  12  N.  Y.  9.  mitted  and  passed  upon,  then  evidence 

«  Wheeler  v.  Van  Houten,  12  Johns,  should  be  admitted  as  to  the  fact  of 

311;   Owen  v.  Boerum,  23  Barb.  187.  the  case:  Keaton  v.  Mulligan,  43  Ga. 

Cases  sustaining  the  New  York  cases  308. 

are  Smith  v.  Johnson,  15  East,  213;  *  King  v.  Savory,  8  Cash.  309;  Ed- 
Bunnell  v.  Pinto,  2  Conn.  431;  Mc-  wards  d.  Stevens,  1  Allen,  315;  Bixby 
Gimsey  v.  Traverse,  1  Stew.  244;  18  v.  Whitney,  5  Greenl.  192;  Newman 
Am.  Dec.  43.  An  award  is  conclusive  v.  Wood,  Mart.  &  Y.  190;  Buck  v. 
as  to  the  matters  submitted;  but  if  it  Buck,  2  Vt.  420;  Whittemore  v.  Whit- 
is  doubtful  from  the  terms  of  the  sub-  temore,  2  N.  H.  26;  Englcman  v.  En- 
mission   whether  a   matter   was   sub-  glenian,  1  Daua,  437. 


§§  321,  322       THE    JUDGMENT   AS    AN    ESTOPPEL.  684 

ing  it.*  By  following  the  course  pointed  out  by  this 
decision,  most  of  the  evils  arising  from  permitting  a 
party  to  avoid  the  effect  of  an  award  by  showing  that  a 
matter  was  overlooked  and  not  presented  may  be  avoided. 
For  either  party  may,  if  he  wish,  escape  from  the  vexa- 
tion of  subsequent  litigation,  so  far  as  regards  any  pre- 
tension of  his  adversary  of  which  he  has  any  knowledge. 
Still,  it  would  seem  more  logical,  and  more  consistent  with 
the  principles  applied  to  other  legal  controversies,  to  re- 
quire each  party  to  remember  his  own  demands,  instead 
of  requiring  his  adversary  both  to  ascertain  and  suggest 
the  existence  of  such  demands,  or  to  be  subjected  to  the 
inconvenience  of  another  litigation. 

§  321.  Real  Estate  —  General  Submission.  —  A  general 
submission  of  all  actions  and  causes  of  action,  and  of  all 
quarrels,  controversies,  trespasses,  damages,  and  demands 
whatsoever,  authorizes  the  arbitrators  to  take  cognizance 
of  questions  concerning  real  property.  The  law  does  not 
require  a  more  specific  submission  as  to  one  kind  of  prop- 
erty than  as  to  another.'^  Doubts  were  formerly  enter- 
tained whether  "the  title  to  land  was  submissible,  since 
it  is  in  realty";  but  these  doubts  were  settled  by  declar- 
ing the  law  to  be  that  awards  respecting  realty  "  stand 
upon  the  same  ground  as  those  respecting  personal  prop- 
erty." *  While  an  award  cannot  operate  as  a  conveyance, 
it  may  operate  as  an  estoppel,  and  conclude  the  parties 
in  a  subsequent  controversy  respecting  real  property  from 
contesting  the  questions  settled  by  it.^ 

§.322.  Matters  not  in  Dispute.  —  It  is  generally  con- 
ceded that  the  mere  existence  of  a  cause  of  action  will  not 
bring  it  within  a  general  submission  if  it  is  not  a  matter 

1  Warfieldi;.  Holbrook,  20Pick.  531.  *  Shelton   v.   Alcox,   11    Conn.  240; 

2  Sellick  V.  Addams,  15  Johns.  197;  Robertson  v.  McNiel,  12  Wend.  575; 
Munro  v.  Alaire,  2  Gaines,  327;  2  Am.  Carey  v.  Wilcox,  6  N.  H.  177;  Por- 
Dec.  330;  Marks  v.  Marriott,  1  Ld.  ter's  Lessee  v.  Matthews,  2  Harr. 
Baym.  li4;  Byers  v.  Vaa  Deusen,  5  (Del.)  30;  Davis  v.  Havard,  15  Ser^. 
Wend.  268.  &  R.  1(55;    16  Am.  Dec.  537;    Cox   v. 

3  Sheltoa  v.  Alcox,  11  Conn.  240.  Jagger,  2  Cow.  CSS;  14  Am.  Dec.  532. 


585  THE    JUDGMENT   AS    AN    ESTOPPEL.       §§  323,  324 

of  dispute  between  the  parties  when  the  agreement  to  sub- 
mit to  arbitration  is  consummated.'  But  the  submission 
of  a  controversy  growing  out  of  a  specified  contract  or 
transaction,  or  of  an  account  relating  to  a  particular 
course  of  dealing,  must  be  so  regarded  that  neither  party- 
shall  be  allowed  to  rebut  the  conclusive  effect  of  the 
award  by  showing  that  some  item  was  not  laid  before 
the  arbitrators.'^  But  a  judgment  on  an  award  in  favor 
of  the  builder  and  against  the  owner  of  a  house,  upon  a 
submission  of  all  demands,  is  no  bar  to  an  action  against 
the  builder  by  the  owner  to  recover  a  sum  which  he  was 
subsequently,  though  before  payment  of  the  award,  com- 
pelled to  pay  to  discharge  a  mechanic's  lien.' 

§  323.  Bill  of  Review.  —  A  complaint  for  the  review  of 
a  judgment  is  in  the  nature  of  a  writ  of  error.  A  second 
complaint  to  review  the  same  judgment,  after  a  final  hear- 
ing on  the  former  complaint,  will  not  be  permitted.* 

§  324.  Habeas  Corpus.  —  The  writ  of  habeas  corpus  may 
be  resorted  to,  —  1.  By  or  in  behalf  of  some  person  who 
is  imprisoned  or  otherwise  deprived  of  his  liberty;  or  2.  On 
behalf  of  some  person  claiming  the  right  to  the  custody 
of  a  minor  or  other  person,  and  that  he  is  deprived  of 
such  custody  by  some  person  not  entitled  to  do  so.  In 
cases  of  the  first  class  it  is  well  settled  that  the  remandino- 
to  custod}'-  of  the  person  claimed  to  be  illegally  impris- 
oned is  not  a  decision  to  which  the  principle  of  o^es  judi- 
cata is  applied.  A  party  may  apply  successively  to  every 
court  having  jurisdiction  to  grant  the  writ  for  his  dis- 
charge, until  he  exhausts  the  entire  judicial  authority  of 
the  state.^  "How  far  judges  would  go  in  their  examina- 
tion, after  a  case  had  once  been  determined,  is  a  question 

J  Ravee  v.  Farmer,  4  Term  Rep.  146;  '  Hale  v.  Huse,  10  Gray,  99. 

Elliott?'.  Quiml>y,  13  N.  H.  181;  Rob-  *  Coen  v.  Funk,  2G  In.l.  2S9;  Stra- 

iri.son  V.  Morse,  29  Vt.  404;  Trescott  v.  der    v.     Heirs     of    Byrd,     7      Obio, 

Baker,  29  Vt.  459.  184. 

•'  Briggs  V.   Brewster,  2.3   Vt.   100;  »  In  re  Saell,  31  Minn.  110. 
Duun  V.  Murray,  9  Barn.  &  C.  780. 


§  324  THE    JUDGMENT    AS    AN    ESTOPPEL.  586 

which  must  rest  exclusively  in  their  own  sound  judgment; 
but  a  previous  examination  cannot  prevent  their  right  to 
re-examine  the  whole  case  if  they  should  think  proper  to 
do  so."^  If,  on  the  other  hand,  the  prisoner  is  discharged 
from  custody,  this  is  an  adjudication  that  at  that  time  he 
was  entitled  to  his  libert}'-,  and  is  conclusive  in  his  favor, 
should  he  be  again  arrested,  unless  some  authority  can  be 
shown  for  holding  him,  which  did  not  exist  at  the  time 
of  his  discharge.^ 

In  the  cases  of  the  second  class  to  which  wb  have  re- 
ferred, though  the  party  in  whose  behalf  the  writ  issues 
may  be  restrained  of  his  liberty,  yet  the  real  object  of  the 
parties  in  suing  out  the  writ  is  to  obtain  a  decision  upon 
some  claim  of  right  made  either  by  the  parly  against 
whom  the  writ  issues,  or  the  party  by  whom  the  applica- 
tion for  it  was  made;  and  he  whose  restraint  is  alleged 
is  often  brought  into  court  merely  to  enable  it  to  deter- 
mine conflicting  claims  of  others  to  his  custody.  Where 
such  is  the  case,  the  principle  of  res  judicata  applies,  and 
the  determination  by  the  court  of  the  issues  presented  is 
conclusive  upon  the  real  contestants.  The  father  of  a 
minor  procured  the  issuing  of  a  writ  of  habeas  corpus, 
and  when  he  was  brought  into  court  in  response  to  the 
writ,  it  was  claimed  that  the  officer  against  whom  the 
writ  had  issued  had  the  right  to  detain  him  in  custody 
as  a  soldier  enlisted  in  the  service  of  the  United  States. 
The  claim  was  overruled,  and  the  prisoner  discharged 
from  custody.  Being  again  taken  into  custody  by  the 
military  authorities,  he  obtained  a  writ  of  habeas  corpus  on 
his  own  application,  and  insisted  that  his  former  discharge 
was  conclusive  in  his  favor.  In  sustaining  this  claim  the 
court  said:  "The  decision  upon  that  writ,  after  notice  and 
full  hearing,  discharging  him  from  the  custody  of  Captain 

^  In  the  Matter  of  Perkins,  2  Cal.  Judge,  5  Ala.  130;  Ex  parte  Reynolds, 

429;  Matter  of  Edward  Ring,  28  Cal.  6  Parker,  276. 

247;  Ex  parte  Kaine,  3  Blatchf.  1;  In  '  Ex  parte  Jilz,  64  Mo.  205;  27  Am. 

re  Blair,  4  Wis.  522;  Bell  v.   State,  4  Rep.  218;   Yates  v.  People,  6  Johns. 

Gill,  301;  45  Am.  Dec.  130;  Wade  v.  337. 


687  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  324 

Wheaton,  was  an  adjudication  that  he  was  not  liable  to 
be  held  as  an  enlisted  soldier,  and  a  conclusive  determi- 
nation of  all  questions  of  law  and  fact  necessarily  involved 
in  that  result.  Any  facts  which  the  respondent  deemed 
material  upon  that  issue  should  have  been  proved  at  that 
hearing,  and  any  ruling  in  matter  of  law  with  which  he 
was  dissatisfied  should  have  been  then  reserved.  The 
judicial  discharge  of  a  prisoner  upon  habeas  corpus  con- 
clusively settles  that  he  was  not  liable  to  be  held  in  cus- 
tody upon  the  then  existing  state  of  facts.  Neither  the 
eflfect  of  his  having  been  previously  registered  and  ordered 
into  custody  as  a  deserter,  nor  either  of  the  other  ques- 
tions discussed  at  the  bar,  —  whether  his  oath  that  he  was 
of  age  should  be  deemed  conclusive  upon  that  point,  or 
whether  a  minor  more  than  eighteen  years  old  could  be 
lawfully  enlisted  without  the  consent  of  his  parent  or 
guardian,  —  is  therefore  now  open  for  consideration.  Nor 
is  it  material  that  the  petition  for  the  first  writ  was  made 
by  the  prisoner's  father,  and  that  for  the  present  writ  by 
himself.  Neither  the  form  of  the  writ  nor  the  effect  of 
the  discharge  is  varied  by  the  name  on  which  the  petition 
is  presented."' 

The  principle  of  res  judicata  is  also  applicable  to  pro- 
ceedings on  habeas  corpus,  so  far  at  least  as  they  involve 
an  inquiry  into  and  a  determination  of  the  rights  of  con- 
flicting claimants  to  the  custody  of  minor  children.  The 
decision  on  a  former  writ  is  conclusive  in  a  subsequent 
application,  unless  some  new  fact  has  occurred  which  has 
altered  the  state  of  the  case  or  the  relative  claims  of  the 
parents  or  other  contestants  to  the  custody  of  the  child  in 
some  material  respect.  The  principles  of  public  policy 
requiring  the  application  of  the  doctrines  of  estoppel  to 
judicial  proceedings,  in  order  to  secure  the  repose  of 
society,  are  as  imperatively  demanded  in  the  cases  of 
private  individuals  contesting  private  rights  under  the 

1  McConologue's  Case,  197  Mass.  170;  Spalding  v.  People,  7  Hill,  301;  Betty's 
citing  Ex  parte  Milburn,  9  Pet.  704;    Case,  20  L.  Rep.  455. 


§  325  THE    JUDGMENT    AS    AN    ESTOPPEL.  588 

form  of  proceedings  in  habeas  corpus  as  if  the  litigation 
were  conducted  in  any  other  form.  Otherwise,  as  is  well 
stated  in  the  opinion  of  Senator  Paige,  "such  unhappy 
controversies  as  these  may  endure  until  the  entire  im- 
poverishment or  the  death  of  the  parties  jenders  their 
further  continuance  impracticable.  If  a  final  adjudication 
upon  a  habeas  corpus  is  not  to  be  deemed  res  adjudicata,  the 
consequence  will  be  lamentable.  This  favored  writ  will 
become  an  engine  of  oppression,  instead  of  a  writ  of 
liberty."  ^  "  The  question  of  the  custody  of  a  minor  child, 
once  properly  and  finally  adjudicated,  whether  in  a  habeas 
corpus  proceeding  or  otherwise,  is  settled  for  all  time,  un- 
less there  be  an  appeal,  and  the  judgment  rendered  is 
impregnable  as  against  a  collateral  assault."^ 

§325.  Motions  and  Orders. —  "The  principle  of  res 
adjudicata  which  prevents  a  matter  being  twice  litigated 
has  no  application  to  a  mere  interlocutory  motion."^ 
The  decision  of  a  motion  is  never  regarded  in  the  light 
of  res  adjudicata.*  Such  aire  the  general  declarations 
made  in  divers  cases.  If  conceded  to  be  technically  cor- 
rect,  they  are  not  well  calculated  to  convey  to  the  reader 
an  accurate  conception  of  the  effect  of  the  decision  of  a 
motion  upon  subsequent  proceedings  in  the  same  case. 
The  decision  of  a  motion  will  be  considered,  —  1.  With 
regard  to  its  effect  in  other  cases;  and  2.  With  regard 
to  its  effect  upon  motions  involving  similar  questions 
in  the  same  case.  As  a  general  rule,  the  decision  of 
a  motion  or  of  a  summary  application  "will  not  be  so 
far  conclusive  upon  the  parties  as  to  prevent  their  draw- 
ing the  same  matters  in  question  again  in  the  more  regu- 

1  Mercien  v.  People,  25  Wend.  99;  ^  Bei,nont  v.  Erie  R.  R.  Co.,  52 
35  Am  Dec.  653;  Mercien  v.  People,  Barb.  637;  Van  Rensselaer  v.  Shenfif, 
3  Hill  399-  38  Am.  Dec.  644;  State  v.  1  Cow.  501;  Simson  v.  Hart,  14  Johns. 
Bechdel  37  Minn.  360;  5  Am.  St.  Rep.  75;  Akerly  v.  Vilas,  16  Int.  Rev.  Rec. 
854  154;  5  Chic.  L.  N.  73;  3  Biss.  332. 

2  Brooke  V.  Logan,  112  Ind.  183;  2  'Snyder  v.  White,  6  How  Pr. 
Am.  St.  Rep.  177;  Dubois  v.  Johnson,  321 ;  Easton  v.  PickersgiU,  75  N.  Y. 
96  lud.  6.  6^9- 


589  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  325 

lar  form  of  a  suit  either  in  law  or  equity."^  The  reasons 
for  holding  such  decisions  not  to  be  conclusive  in  a  regu- 
lar suit  were  in  an  early  case  in  New  York  stated  to  be 
because  "it  is  a  fact  well  known  that  such  motions  do  not 
admit  of  that  grave  discussion  and  consideration  as  ques- 
tions arising  on  demurrer,  in  arrest  of  judgment,  or  for  a 
new  trial.  Again,  decisions  on  summary  application  can 
never  be  thrown  into  the  shape  of  a  record,  and  become 
the  subject  of  review  in  any  other  court. '"*  A  statute  of 
Kansas  provided  that  a  court  may  either  reject  or  confirm 
a  sale  made  under  execution.  It  was  held  that  while  the 
court  might,  on  hearing  the  motion  for  confirmation,  in- 
quire into  the  fraudulent  conduct  of  the  officers  conduct- 
ing the  sale,  or  of  the  bidders  attending  it,  yet  that  the 
decision  of  the  motion  would  not  affect  the  ultimate  rights 
of  the  parties  in  a  regular  suit  involving  the  same  issues. 
It  will  be  seen  that  the  reasoning  of  the  court  in  the  case 
of  Simson  v.  Hart,  14  Johns.  75,  which  seems  to  be  a  lead- 
ing American  case  upon  the  subject,  is  inapplicable  to 
those  motions  which  admit  of  "grave  discussion  and  de- 
liberation," and  are  capable  of  "  being  thrown  into  the 
shape  of  a  record,"  and  being  the  "  subject  of  review  in 
another  court." 

In  New  York  the  decision  of  a  motion,  notwithstanding 
the  general  declarations  to  the  contrary  frequently  made, 
may  be  res  judicata.  This  is  proved  by  the  case  of  Dwight 
V.  St.  John,  25  N.  Y.  203.  Upon  the  trial  of  that  case, 
the  plaintiff  gave  in  evidence  the  papers,  upon  a  motion 
made  by  the  defendant  in  the  supreme  court,  to  have  the 
judgments  canceled  and  discharged  of  record  as  satisfied. 
Upon  the  motion  being  made,  the  court  directed  a  refer- 
ence to  inquire  and  report  as  to  the  facts  set  up  by  the 
parties,  which  were  substantially  the  same  as  those  averred 
by  them  in  the  second  action.     Upon  the  coming  in  of 

^  Dickenson  v.  Gilliland,  1  Cow.  495;  Minneapolis  etc.  R.  E.  Co.,  33  Minn. 

Watson    V.     Jackson,    24    Kan.     442;  419;   Easton  v.   Pickersgill,   75  N.   Y. 

Sanderson  v.  Daily,  83  N.  C.  67;  Proc-  599;  Ashton's  Appeal,  73  Pa.  St.  153. 

tor  V.   Cole,   104   lud.  373;    Kanue  v.  *  Sinisou  v.  Hart,  14  Johns.  75. 


§  325  THE    JUDGMENT   AS    AN    ESTOPPEL.  590 

the  referee's  report,  the  court  denied  the  motion  to  satisfy 
the  judgments.  In  the  second  action  the  decision  of  this 
motion  was  claimed  as  res  judicata.  In  allowing  this 
claim  the  court  of  appeals  said:  *'  Upon  this  point  it  is  to 
be  observed  that  some  decisions  (made  before  the  exist- 
ence of  the  code),  especially  that  of  Sirnson  v.  Hart,  in  the 
court  of  errors,  14  Johns.  63,  are  chiefly  based  upon  the 
ground  that  such  summary  proceedings  as  they  passed 
upon  were  then  heard  without  full  proofs,  and  were  not 
reviewable,  whereas  in  the  case  before  us  the  hearing  was 
upon  full  proofs;  and  the  code  has  entirely  taken  away 
the  other  ground  by  making  the  proceeding  liable  to  re- 
view. Since,  then,  a  full  hearing,  with  the  right  of  appeal, 
was  open  to  the  defendant  on  that  motion,  how  is  he  to 
avoid  the  binding  eflFect  of  that  decision,  so  far  as  it  covers 
what  was  actually  and  necessarily  tried  on  that  reference?  " 
After  specifying  the  issues  which,  in  its  judgment,  were 
involved  in  the  motion  in  the  former  action,  and  were 
then  determined  against  the  defendant,  the  court  adds: 
"To  this  extent,  therefore,  the  defendant  should  be  held 
concluded  by  that  adjudication,"  and  "so  much,  then,  is 
finally  adjudicated  against  the  defendant;  and  this  court 
has  now  no  power  to  interfere  with  that  decision."  From 
this  decision  we  may  infer  that  in  New  York,  if  not  in 
other  states,  the  decision  of  a  motion  is  as  final  and  con- 
clusive as  the  decision  of  a  trial,  if  the  proceedings  permit 
of  a  full  hearing  upon  the  merits,  and  the  order  made  is 
liable  to  review  in  some  appellate  court.^  In  Georgia  the 
denial  of  a  motion  to  set  aside  a  judgment  was  assumed 
to  estop  the  applicant  from  prosecuting  a  subsequent 
motion  for  the  same  purpose.'^  The  question  whetlier  an 
issue  has  or  has  not  become  res  judicata  because  litigated 
and  determined  in  a  summary  proceeding  is  one  upon 
which,  in  view  of  the  more  recent  decisions,  it  must  be 
very  difficult  to  decide.     The  tendency  of  these  decisions 

1  Petition  of  Livingston,  34  N.  Y.  555.         ^  Grier  v.  Jones,  54  Ga.  154. 
See  Eastou  v.  Pickersgill,  75  N.  Y.  599. 


591  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  325 

is  to  disregard  the  form  or  time  of  an  adjudication,  and 
to  inquire  whether  the  question  really  arose  and  was  or 
might  have  been  contested  on  the  merits,  and  was  neces- 
sarily decided  by  the  court.  If  so,  it  will  generally  be 
regarded  as  conclusively  and  finally  settled,  though  such 
decision  disposed  of  a  motion,  rather  than  of  an  indepen- 
dent action  or  proceeding,  and  especially  if  the  action  of 
the  court  was  subject  to  review  by  some  appropriate  ap- 
pellate proceeding/ 

We  now  come  to  consider  the  question  whether  the 
granting  or  denying  of  a  motion  during  the  progress  of  a 
cause,  or  even  after  the  rendition  of  a  judgment,  amounts 
to  a  prohibition  of  a  subsequent  motion  involving  the 
same  issues  which  have  been  considered  and  determined 
on  the  former  application.  "  Courts,  to  prevent  vexatious 
and  repeated  applications  on  the  same  point,  have  ]-ules 
which  preclude  the  reagitation  of  the  same  question  on 
the  same  state  of  facts.  These  rules  are  for  the  orderly 
conduct  of  business,  and  are  not  founded  on  the  principle 
of  res  judicata.  It  is  not  uncommon,  in  courts  of  law,  to 
deny  a  motion  one  day  and  on  another  to  grant  it  on  a 
more  enlarged  state  of  facts."  ^  The  rules  here  referred 
to  seem  to  require  that  leave  of  the  court  must  first  be  ob- 
tained before  a  motion  can  be  renewed  upon-  substantially 
the  same  grounds  as  those  upon  which  the  court  has 
already  passed.  "  It  is  entirely  in  the  discretion  of  a 
court  to  hear  a  renewal  of  a  motion  or  not.  They  can,  as 
they  deem  advisable,  hear  it  on  precisely  the  same  papers. 
This,  of  course,  will  be  rarely  allowed;  it  would  be  pro- 
ductive of  the  most  serious  inconvenience;  but  still  there 
may  be  occasions  which  would  render  it  essential  to  jus- 
tice." ^  The  reasons  assigned  for  investing  courts  with  a 
discretionary  power  in  rehearing  matters  decided  upon 

*  See  citations  at  end  of  section  326.  Dollfus  v.  Frosch,  5  Hill,  493;  40  Am. 

'  Siinson  v.  Hart,  14  Johns.  63;  Bel-  Dec.  3GS;  Smith  v.  Spalding,  3  Rob. 

mont  V.    Erie  E,.    R.    Co.,   52   Barb.  (N.  Y.)  6J5;  Katz  v.  Auf^ust,  cited  in 

637.  B.-lmout  v.  Erie  R.  R.  Co.,  52  Bark 

»  VV^hite  a.  Munroe,  33   Barb.    650;  637. 


§  326  THE    JUDGMENT    AS    AN    ESTOPPEL.  692 

motion  are  applicable  only  to  those  proceedings  from 
which  no  redress  can  be  obtained  by  appeal.  "  In  motions, 
such  as  these,  not  appealable,  a  grievous  wrong  may  be 
committed  by  some  misapprehension  or  inadvertence  of 
the  judge,  for  which  there  would  be  no  redress  if  this 
power  did  not  exist."  ^  A  motion  may  be  renewed  with- 
out leave  upon  new  matter;  but  '"the  new  matter'  which 
will  alone  justify  the  renewal  of  a  motion  without  leave 
must  be  something  which  has  happened,  or  for  the  first 
time  come  to  the  knowledge  of  the  party  moving,  since 
the  decision  of  the  former  motion."^  "Affidavits  which 
merely  present  additional  or  cumulative  evidence  on  the 
points  before  presented  are  not  to  be  considered  as  show- 
ing new  grounds  for  a  motion."^ 

§  326.  Rules  Applied  to  Motions.  —  It  will  be  seen  from 
an  examination  of  the  cases,  both  English  and  American, 
that  while  the  doctrine  of  res  adjudicata  is  in  general  said 
not  to  be  strictly  applicable  to  motions,  yet  that  the  courts 
have  in  its  place  adopted  rules,  which,  in  the  prevention 
of  the  reagitation  of  the  same  matter,  operate  substan- 
tially like  the  rules  of  res  judicata,  so  far,  at  least,  that  the 
decision  of  a  motion  heard  upon  the  merits  is  conclusive  of 
a  subsequent  motion  in  the  same  case  proceeding  upon 
the  same  grounds.*  The  court  will  rarely  use  its  discre- 
tionary powers  to  allow  the  renewal  of  a  motion,  unless 
"in  the  circumstances  of  the  opposition  there  is  some- 
thing to  excite  suspicion  of  unfairness,  or  a  belief  that 

'  Same    cases   named   in    preceding  *  does  not  apply  to  such  motions  made 

citation.  in  the  course  of  practice,  and  the  coui-t 

^  Willettv.  Fayerweather,  1  Barb.  72.  may,  upon  a  proper  showing,  allow  a 

*  Ray  V.  Connor,  3  Edw.  Ch.  478.  renewal  of  a  motion  of  this  kind  once 

*  Davies  v.  Cottle,  .3  Term  Rep.  405;  decided.  But  this  leave  will  rarely  be 
Mitchell  V.  Allen,  12  Wend.  290;  Dodd  given  upon  the  ground  that  the  mov- 
V.  Astor,  2  Barb.  Ch.  395;  Bascom  v.  ing  party  can  produce  additional  evi- 
Feazler,  2  How.  Pr.  16;  Greathead  v.  dence  in  support  of  his  motion,  unless 
Bromley,  7  Term  Rep.  455;  Benjamin  it  also  appears  that  a  new  state  of 
V.  Wilson,  6  L.  C.  Jur.  246;  Smith  v.  facts  has  arisen  since  the  former  hear- 
Coe,  1  Sweeny,  385.  Speaking  of  mo-  ing,  or  that  the  then  existing  facts 
tions  for  an  alias  writ  of  possession,  were  not  presented  by  reason  of  the 
the  supreme  court  of  California  at  Oc-  surprise  or  excusable  neglect  of  the 
tober  term,  1872,  says:  "The  doctrine  moving  party":  Ford  v.  Doyle,  44  Cal. 
of  res  adjudicata,  in  its  strict  sense,  635. 


593  THE    JUDGMENT    AS   AN    ESTOPPEL.  §  326 

the  party  moving  is  taken  by  surprise,  or  if  the  motion 
be  denied  because  of  some  defect  in  the  moving  papers, 
arising  from  ignorance  of  the  practice.  So  a  party  may 
obtain  leave  to  renew,  on  falsifying  the  affidavit  used  in 
opposition,  or  showing  that  the  facts  stated  in  it  are  ex- 
plainable so  as  not  to  amount  to  a  denial  of  the  grounds 
of  the  motion.  A  motion  will  sometimes  be  opened  on 
the  question  being  changed  by  new  materials  discovered 
or  arising  afterwards."  ^  The  same  degree  of  diligence 
will  be  required  of  a  party  in  sustaining  his  motion  as 
■would  be  sufficient  to  free  him  from  the  imputation  of 
laches,  if  he  were  engaged  in  the  trial  of  the  case.  If  he 
makes  his  application,  and  from  his  own  neglect  supports 
it  by  insufficient  materials,  and  the  rule  is  on  that  ground 
discharged,  he  cannot  be  afterwards  allowed  to  supply  the 
deficiency  and  renew  the  application.^  Upon  motions,  as 
upon  trials,  public  policy  and  courts  of  justice  unite  in 
requiring  that  there  shall  be  an  end  to  litigation.  "And 
if  a  party  will  not  be  vigilant  in  prosecution  or  defense, 
and  will  suffer  the  time  to  go  by  for  the  production  of  his 
proofs  without  a  sufficient  excuse,  he  must  not  afterwards 
complain."*  In  England,  it  is  a  general  rule,  believed  to 
be  applicable  to  all  the  courts,  that  after  an  application 
has  been  made  and  has  failed  on  account  of  defective 
materials,  they  will  not  allow  any  further  inquiry.  An 
exception  exists  when  the  affidavits  have  been  wrongly 
entitled,  or  there  has  been  some  defect  in  the  jurat.  None 
of  the  cases,  however,  go  to  the  extent  of  holding  that 
under  no  circumstances  can  an  application  be  made  on 
fresh  materials.*  If  a  party  fails  in  his  motion  on  the 
ground  of  any  formal  defect  in  his  papers,  or  from  any 
cause  not  affecting  the  merits  of  his  application,  he  should 
ask  leave  to  renew  the  motion,  or  that  it  be  denied  with- 

^  Note  to  DoUfus  v.  Frosch,  5  Hill,  v.  Hammer,  4.3  Minn.   195;  Easton  v. 

49.3;   40   Am.    Dec.    368;    Claggett  v.  Pickersgill,  75  N.  Y.  599. 

Simes,    25   N.  H.  402;   Chichester  v.  '■'  Regina  v.  Inhabitants  of  Barton   9 

Cande,  3  Cow.  89;  15  Am.  Dec.  238;  Dowl.  Pr.  1021. 

Greenwood  v.  Marvin,  111  N.  Y.  423;  ^  Ray  v.  Connor,  3  Edw.  Ch.  478. 

Wings  V.  Hooper,  98  N.  C.  428;  Weller  *  Dodgsou  v.  Scott,  2  Ex.  457. 
JUDQ.  I. —38 


§  327  THE    JUDGMENT    AS    AN    ESTOPPEL.  594 

out  prejudice  to  another  motion.  If  his  request  is  granted, 
it  should  be  so  stated  in  the  order.  If  his  motion  is  de- 
nied generally,  it  is  necessary  to  obtain  leave  to  renew  it, 
though  it  failed  on  account  of  some  informality.^  In 
Wisconsin,  the  denial  of  a  motion  to  vacate  a  judgment 
is  a  bar  to  a  writ  of  error  coram  nobis? 

The  tendency  of  the  recent  adjudications  is  to  inquire 
whether  an  issue  or  question  has  been  in  fact  presented 
for  decision  and  necessarily  decided,  and  if  so,  to  treat  it 
as  res  judicata,  though  the  decision  is  the  determination 
of  a  motion  or  summary  proceeding,  and  not  of  an  inde- 
pendent action.  This  is  especially  true  when  the  decision 
did  not  involve  a  mere  question  of  the  proper  form  or 
time  of  proceeding,  but  was  the  determination  of  a  sub- 
stantial matter  of  right,  upon  which  the  parties  interested 
had  a  right  to  be  heard  upon  issues  of  law  or  fact,  or  both, 
and  these  issues,  or  some  of  them,  were  necessarily  de- 
cided by  the  court  as  the  basis  of  the  order  which  it  finally 
entered  granting  or  denying  the  relief  sought.' 

§  327.  Proceedings  Supplementary  to  Judgment.  — 
Proceedings  taken  for  the  purpose  of  obtaining  possession 
of  land  by  the  aid  of  a  writ  of  assistance,  though  upon 
due  notice,  and  after  a  contest  on  the  merits,  are  not,  in 
a  subsequent  action,  conclusive  of  any  of  the  matters  in- 
volved in  the  decision  of  the  motion.  Thus  where,  upon 
application  of  a  purchaser  under  a  decree  of  foreclosure, 
a  writ  issued,  under  which  C  was  dispossessed  of  certain 
premises,  and  C  afterwards,  upon  application  to  the  court, 
procured  an  order  restoring  him  to  possession,  on  the 
ground  that  the  land  from  which  he  had  been  removed 
was  not  included  in  that  described  in  the  deed,  such  order 

1  Dollfus  V.  Frosch,  5  Hill,  493;  40  missioners,  30  Kan.  234;  Hawk  v. 
Am.  Dec.  368.  Evans,  76  Iowa,  593;  14  Am.  St.  Rep. 

2  Second  Ward  Bank  v.  Upman,  14  247;  Johnson  v.  Latta,  84  Mo.  139; 
Wis   596.  Obear  v.  Gray,  73  Ga.  455;  Gordmier  3 

3  Page  w.  Esty,  54  Me.  319;  Reeves  Appeal,  89  Pa.  St.  528;  Warran  v. 
V  Plough,  46  Ind.  350;  Trescott  v.  Simon,  16  S.  C.  362;  RouUiac  v. 
Lewis,  12  La.  Ann.  197;  State  v.  Brown,  87  N.  C.  1;  Mabry  v.  Henry, 
Booth,   68  Mo.  546;  Wilson  v.  Com-  83  N.  C.  293. 


595  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  327 

being  obtained  after  a  full  trial  upon  the  merits  of  the 
issue  involved  in  the  application  for  restoration,  it  was 
decided  that  the  question  whether  the  deed  did  include 
the  same  premises  was  not  res  judicata,  because  the 
estoppel  of  a  former  adjudication  can  only  arise  *4n  a 
cause  regularly  tried  on  its  merits  upon  issues  duly  joined 
by  proper  pleadings  between  the  same  parties  or  their 
privies,"  and  because  the  motions  and  orders  in  the  for- 
mer cause,  "although  the  parties  to  the  second  action 
appeared  in  and  were  interested  in  the  result  of  such 
motions,  were  in  no  sense  judgments  in  an  action  between 
these  parties  upon  issues  joined  in  a  cause  pending  be- 
tween them."  ^ 

Where  money  resulting  from  a  sale  of  property  is  in 
court,  and  the  application  of  a  claimant  is,  upon  motion 
in  his  behalf,  heard,  considered,  and  denied,  his  claim 
becomes  res  judicata,  and  he  cannot  maintain  assumpsit 
for  the  same  money.^  Proceedings  supplementary  to 
execution  under  the  code  of  California,  requiring  the 
judgment  debtor  to  appear  before  a  court  or  referee  "  to 
answer  concerning  his  property,  are  but  a  substitute  for 
a  creditor's  bill  at  common  law.  It  is  only  a  summary 
method  of  purging  the  debtor's  conscience,  and  compel- 
ling the  disclosure  of  any  property  he  may  have  which  is 
subject  to  execution.  The  proceeding  was  intended  to  be 
summary  and  effectual,  and  affords  the  widest  scope  for 
inquiry  concerning  the  property  and  business  affairs  of 
the  judgment  debtor.  It  is  true,  there  are  no  formal 
issues  framed;  for  in  the  very  nature  of  the  proceedings 
it  would  generally  be  impossible  to  frame  specific  issues 
in  advance  of  the  examination  of  the  judgment  debtor. 
Nevertheless,  witnesses  may  be  called  and  examined  on 
either  side;  and  after  hearing  the  case  the  court  or  referee 
is  to  decide  what  property,  if  any,  the  judgment  debtor 
has  which  is  subject  to  be  applied  to  the  satisfaction  of 

»  Boggs  V.  Clark,   37  Cal.  236.    For         »  Langdon  v.  Raiford,  20  Ala.  532; 
similar  views,  see  Carter  v.  Clarke,  7    Noble  v.  Cope,  50  Pa.  St.  17. 
Rob.  (N.  Y.)43. 


§§  327  a,  328     the  judgment  as  an  estoppel.  596 

the  judgment,  and  to  direct  its  application  accordingly. 
The  proceeding  is  purely  judicial,  involving  an  examina- 
tion into  the  facts  upon  sworn  testimony,  and  the  decis- 
ion of  questions  of  law  arising  on  the  facts  proved.  The 
judgment  creditor  and  debtor  are  parties  to  the  proceed- 
ing, and  each  is  at  liberty  to  call  and  examine  witnesses 
in  respect  to  any  contested  fact  which  may  be  brought  in 
issue  in  the  course  of  the  proceeding.  If  the  parties  to 
such  a  proceeding,  as  between  themselves  and  privies,  are- 
not  estopped  from  again  litigating  the  same  matters  in 
another  form  of  action,  the  whole  proceeding  would  be 
but  a  judicial  farce,  accomplishing  no  useful  end."  It  is 
too  plain  for  argument  that  after  an  adjudication  in  such 
a  proceeding,  in  reference  to  the  liability  of  property  to 
be  applied  to  the  satisfaction  of  the  execution,  the  only 
remedy  left  either  of  the  parties  is  by  taking  an  appeal, 
and  that  while  the  adjudication  remains  in  force  both 
parties  are  estopped  from  litigating  the  same  question  in 
any  other  case  or  by  any  other  form  of  proceeding.^ 

§  327  a.  The  Identity  of  the  Defendant  may  be  so  es- 
tablished by  the  judgment  against  him  as  to  become  res 
judicata.  This  is  the  case  when  he  unsuccessfully  defends 
an  action  on  the  ground  that  he  is  not  the  person  intended 
to  be  named  in  a  writing  or  judgment  produced  and  sought 
to  be  asserted  against  him.^ 

§  328.  Effect  of  Appeal. — When  an  appeal  is  taken 
from  a  judgment,  it  is  evident  that  the  appellant  cannot 
have  the  full  benefit  of  his  appeal  if,  during  the  time 
necessary  to  procure  a  decision  in  the  appellate  court,  the 
judgment  may  be  used  against  him  to  the  same  extent  as 
if  no  appeal  had  been  taken.  The  mere  issuing  and  en- 
forcement of  the  execution  may  be  stayed  by  the  giving 
of  an  appropriate  bond,  but  there  is  no  provision  in  the 
statutes  whereby  the  force  of  a  judgment  as  evidence  or 

.    ^Verneuil«.  Harper,  28  La.  Ann.  893.         »  McCuUough  v.  Clark,  41  CaL  298. 


597  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  328 

as  an  estoppel  may  be  avoided  by  the  giving  of  any  bond 
or  other  security.  In  perhaps  a  majority  of  the  states  the 
perfecting  of  an  appeal  suspends  the  operation  of  a  judg- 
ment as  an  estoppel,  and  renders  it  no  longer  admissible 
as  evidence  in  any  controversy  between  the  parties/  The 
chief  objection  to  this  line  of  decisions  is,  that  it  enables 
one  against  whom  a  judgment  is  entered  to  avoid  its 
force  for  a  considerable  period  of  time  merely  by  taking 
an  appeal.  During  that  time  he  may  carry  on  other  con- 
troversies wdth  the  same  parties,  involving  the  same  is- 
sues, and  obtain  decisions  contrary  to  that  from  which 
the  appeal  w^as  taken,  and  which  could  not  have  been 
obtained  had  the  former  judgment  been  admissible  as 
evidence  against  him;  and  when  it  is  finally  determined 
that  such  judgment  was  free  from  error,  there  may  be  no 
mode  of  retrieving  the  loss  resulting  from  its  suspension 
by  the  appeal.  Probably  this  consideration  has  been  the 
most  potent  in  procuring  the  numerous  decisions  main- 
taining that  the  effect  of  an  appeal,  with  proper  bond  to 
stay  proceedings,  is,  merely  that  it  suspends  the  right  to 
execution,  but  leaves  the  judgment,  until  annulled  or  re- 
versed, binding  upon  the  parties  as  to  every  question 
directly  decided.^  The  evil  resulting  from  this  rule  is, 
that  though  the  judgment  is  erroneous,  and  for  that  rea- 
son is  reversed,  yet  before  the  reversal  it  may  be  used  as 
evidence,  and  thereby  lead  to  another  judgment,  which 
cannot  in  turn  be  reversed,  because  the  action  of  the  trial 
court  in  receiving  and  giving  effect  to  the  former  judg- 

1  Souter  V.  Baymore,  7  Pa.  St.  415;         ^  Sage  v.  Harpending,  49  Barb.  1(56; 

47  Am.  Dec.  518;   State  v.  Mclntire,  Harris  v.  Hammonfl,  18  How.  Pr.  123; 

1  Jones,  1;  59  Am.   Dec.  566;  Wood-  Burton  v.  Burton,  28  Ind.  342;  Nill  v. 

bury  V.  Bowman,  13  Cal.  634;  Haynes  Comparet,  16  Ind.   107;  79  Am.  Dec. 

V.    Ordway,   52  N.  H.  284;   Byrne  v.  407;  Allen  v.  The  Major,  9  Ga.  286; 

Prather,   14  La.  Ann.  653;   Glenn   v.  Planters'  Bank  v.  Calvit,  3  Smedes  & 

Brush   3  Col.  26;  Sherman  v.  Dilley,  M.  143;  41  Am.  Dec.  616;  Parkhurst 

3  Nev.  21;  Small  v.  Haskins,  26  Vt.  v.   Berdell,   110  N.  Y.  .386;  6  Am.  St. 

209-  Sharon  v.  Hill,  26  Fed.  Rep.  337;  Rep.  384;  Scheible  v.  Slagle,  89  Ind. 

Green  v.  United  States,  18  Ct.  of  CI.  328;  Rogers  w.  Hatch,  8  Nev.  35;  Faber 

93-   De  Camp  v.   Miller,  44  N.  J.  L.  v.  Hovey,  117  Mass.  108;  19  Am.  Rep. 

617;  Atkins  »;.  Wymau,  45  Me.  399;  398;  Thompson  w.  Griffin,  69  Tex.  139; 

Ket'chum  v.  Thatcher,   12   Mo.  App.  Moore  d.  Williams,  132  111.  589. 
185;  Day  v.  De  Yoage,  66  Mich.  550. 


§  329  THE    JUDGMENT   AS    AN    ESTOPPEL.  598 

merit  was  correct,  and  does  not  become  erroneous  when 
such  judgment  is  subsequently  reversed.^  In  Connecticut, 
the  operation  of  an  appeal  depends  upon  the  character  of 
the  jurisdiction  of  the  appellate  court.  If  the  latter  court 
has  authorit}'^  to  try  the  cause  de  novo,  and  to  settle  the 
controversy  b)'  a  judgment  of  its  own,  and  to  enforce  such 
judgment  by  its  own  process,  then  it  is  plain  that  by  the 
appeal  the  judgment  of  the  inferior  court  is  not  merely 
suspended,  it  is  vacated  and  set  aside,  and  can  no  longer 
have  effect  as  an  estoppel.  But  if  the  appeal  is  in  the 
nature  of  a  writ  of  error,  conferring  power  on  the  appel- 
late court  to  determine  such  errors  as  may  have  occurred 
at  the  trial  or  in  the  decision  of  the  cause,  and  giving  the 
court,  upon  such  determination,  no  other  authority  than 
that  of  reversing,  modifying,  or  affirming  the  judgment 
of  the  inferior  court  and  of  remitting  the  case  back  to  the 
tribunal  whence  it  came,  that  such  tribunal  may  conform 
its  judgments  and  proceedings  to  the  views  of  its  superior, 
then  the  judgment  appealed, from  does  not,  until  vacated 
or  reversed,  cease  to  operate  as  a  merger  and  a  bar.^  The 
effect  of  a  judgment  is  not  limited  by  the  fact  that  on 
appeal  it  was  affirmed  on  an  equal  division  of  the  judges.' 
The  mere  pendency  of  a  motion  for  a  new  trial  neither 
destroys  nor  suspends  the  effect  of  a  judgment;*  but  the 
granting  of  such  motion  vacates  the  judgment  and  the 
verdict  or  findings  upon  which  it  rested,  and  neither  can 
any  longer  be  respected  as  res  judicata.^ 

§  329.  After-acquired  Rights.  —  From  the  rule  that  an 
adjudication  affects  no  claims  which  the  parties  had  no 
opportunity  to  litigate,  it  results  that  no  judgment  or  de- 
cree can  prejudice  rights  which  had  not  accrued  to  either 

>  Parkhurst  v.   Berdell,   110   N.    Y.  *  Youn^  v.  Brehi,   19   Nev.  379;   3 

386;  6  Am.  St.  Rep.  384.  Am.  St.  Rep.  892. 

2  Bank   of    N.    A.    v.    Wheeler,    28  *  Edwards  v.  Edwards,  21  El.  121 ; 

Conn.  433;  73  Am.  Dec.  683;    Curtis  Sheldon   v.  Van   Vleck,    106   111.    45; 

V.  Beardsley,   15   Conn.  518;    Caiu   v.  Gulf  etc.  R.  R.  Co.  v.  James,  73  Tex. 

Williams,  16  Nev.  426.  12;  15  Am.  St.  Rep.  743;  Winona  v. 

^  Lyon  V.  Ingham  Circuit,  37  Mich.  Minnesota  etc.  Co.,  27  Minn.  415. 
377;  Durant  v.  Essex  Co.,  7  Wall.  107. 


599  THE    JUDGMENT   AS   AN    ESTOPPEL.  §  329 

of  the  parties  at  the  time  of  its  rendition.  A  decision 
that  a  right  exists,  or  that  a  wrongful  act  has  heen  com- 
mitted, leaves  the  party  at  liberty  to  show  at  a  future 
time  that  since  the  decision  was  pronounced  the  right 
has  expired  or  the  wrong  has  been  abated.^  Intervening 
events  affecting  the  issue  may  be  shown  to  prevent  a 
former  judgment  from  being  conclusive,  even  where  the 
title  has  been  tried  in  a  writ  of  entry .^  While  a  judg- 
ment of  a  court  on  the  application  of  a  parent  for  the 
custody  of  a  child  is,  in  New  York,  res  judicata  as  long  as 
the  circumstances  continue  the  same,  it  ceases  to  be  so 
whenever  any  change  takes  place  in  those  circumstances.' 
Under  no  circumstances  will  a  judgment  or  decree  take 
effect  upon  rights  not  then  existing."  If  an  action  is 
brought  to  recover  possession  of  real  or  personal  property, 
the  judgment  therein  cannot  estop  either  of  the  parties 
from  asserting  title  subsequently  acquired.^  If  a  decree 
is  entered  quieting  title  and  enjoining  the  defendant 
from  making  any  further  contest  against  the  plaintiff's 
title,  this  general  language  will  be  confined  to  rights  in 
issue,  and  will  not  prevent  the  plaintiff  from  asserting  a 
subsequently  acquired  title.^  But  a  judgment  is  conclu- 
sive upon  every  right  and  title  which  the  parties  might 
have  asserted,  and  does  not  become  less  final  because  the 
losing  party  afterward  receives  another  and  more  formal 
evidence  of  title.  If  defendant  has  made  proof  and  pay- 
ment under  the  pre-emption  laws  before  judgment  against 
him,  and  afterward  procures  a  patent,  this  is  not  a  "new 
title"  upon  which  he  may  make  another  contest.  "It  is 
merely  a  formal  assurance   of  the  estate  which  he  had 

^McKissickr.  McKissick,  6  Humph.  '  People  v.  Mercein,  3  Hill,  416;  38 

75;   Gluckauf   v.   Reed,   22   Cal.    468;  Am.  Dec.  644. 

Parker    v.    Standish,    3     Pick.    288;  ♦  Jones  v.  Petaluma,  36  Cal.  230. 

Dwyer  v.  Goran,  29  Iowa,  126;  Nea-  *  Hawley   v.    Simons,   102   111.    115; 

fie  V.  Neafie,  7  Johns.  Ch.  1;  11  Am.  Barrows    v.    Kindred,    4    Wall.    399; 

Dec.  380;  Mitchell  v.  French,  100  Ind.  Woodbridge  v.  Banning,   14  Ohio  St. 

334;  Mound  City  L.  A.  v.  Philip,  64  328;    Mann   v.    Rogers,    35   Cal.    316; 

Cal.  493;  Tarleton  v.  Johnson,  25  Ala.  Thrift  v.  Delaney,  69  Cal.  188;  Browa 

300;  GO  Am.  Dec.  515.  v.  Roberts,  24  N.   H.    131;  Merrymaa 

■^  Perkins   v.   Parker,   10  Allen,  22;  v.  Bourne,  9  Wall.  592. 

Morse  v.  Marshall,  97  Mass.  519.  *  Reed  d.  Calderwood,  32  Cal,  109. 


§  329  THE    JUDGMENT   AS    AN    ESTOPPEL.  600' 

already  acquired  by  proof  and  payment."^  The  correct- 
ness of  this  decision  is  not  free  from  doubt,  and  if  it  be 
accepted  as  correct,  it  must  be  restricted  in  its  operation 
to  those  cases  in  which  the  non-issuance  of  the  patent 
could  not  have  constituted. any  impediment  to  the  main- 
tenance of  the  action  or  defense  on  the  part  of  him  to 
whom  it  subsequently  issued.  A  claimant  of  a  Mexican 
grant  who  has  commenced  proceedings  for  its  confirma- 
tion, and  against  whom  a  judgment  is  recovered  during 
their  j^endency,  is,  upon  the  final  confirmation  of  the 
grant  and  the  issuing  to  him  of  a  patent  in  pursuance 
thereof,  regarded  as  having  acquired  a  title  not  in  issue 
in  the  former  action,  and  which  may  therefore  be  asserted 
notwithstanding  the  former  judgment.^ 

The  question  has  not  yet  been  sufiiciently  discussed  to 
enable  one  to  foresee  upon  which  side  the  weight  of  au- 
thorities will  be  finally  ranged,  as  to  whether  a  title  may 
be  regarded  as  an  after-acquired  one,  when  its  acquisition, 
though  after  the  commencement  of  the  action,  was  j^rior 
to  the  rendition  of  the  judgment  therein.    It  is  well  settled 
that  the  issues  in  a  case  ordinarily  refer  to  the  begin- 
ning of  the  suit,  and  that  matters  occurring  during  its  pen- 
dency are  not  in  issue,  and  cannot  be  received  in  evidence, 
unless  under  some  supplemental  pleading  filed  by  permis- 
sion of  the  court.     So  far  as  the  plaintiff  is  concerned,  no 
doubt  he  is  not  estopped  from  asserting  any  title  acquired 
after  the  commencement  of  the  action,  because  he  must 
generally  recover  upon  the  cause  of  action  held  by  him 
at  that  time,  and  cannot  be  aided  by  rights  of  action  aris- 
ing afterwards.     A  defendant  will,  however,  ordinarily  be 
permitted  by  the  court  to  plead  that  he  has  acquired  a 
defense,  or  that  plaintiff's  cause  of  action  has  terminated 
pendente  lite;  and  acting  upon  the  rule  that  whatever  may 
be  presented  as  a  defense  to  an  action  must  be  so  pre- 
sented, some  of  the  courts  have  held  that  a  title  acquired 

^  Byers  v.  Neal,  43  Cal.  210.  INTerryinaa      v.      Bourue,      9      Wall. 

2  Aiiiesti    V.    Castro,    49    Cal.    325;     59i. 


601  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  330 

by  a  defendant  after  the  commencement  of  an  action 
must  be  asserted  by  supplemental  pleading  therein,  and 
not  being  so  asserted,  is  forever  lost  to  him.'  But,  in  our 
judgment,  the  defendant  is  under  no  obligation  to  enlarge 
the  issues  presented  by  the  plaintifiF's  complaint,  or  in 
other  words,  to  tender  an  issue  respecting  a  matter  which 
he  claims  to  have  occurred  pendente  lite,  and  if  he  does 
not  plead  title  acquired  after  the  commencement  of  the 
action,  is  not  estopped  from  asserting  it  in  any  subse- 
quent controversy,  though  it  is  with  the  party  who  pre- 
vailed in  the  former  action.^ 

§830.  Defaults  and  Admissions.  —  A  judgment  may 
result  wholly  or  partly  from  the  concessions  of  the  parties; 
or  in  other  words,  from  the  fact  that  one  of  them  has 
made  allegations  which  the  other  has  not  denied,  and 
which  the  court  has  therefore  had  no  occasioai  to  investi- 
gate. Hence  the  question  arises  whether  the  rules  of  res 
judicata  apply  to  matters  so  conceded,  or  only  to  those  upon 
which  parties  have  taken  issue,  and  which  the  court  has 
on  that  account  been  compelled  to  decide.  Upon  princi- 
ple, we  think  that  the  denial  of  a  fact  subsequently  judi- 
cially established  ought  not  to  impart  to  an  adjudication 
any  greater  effect  than  if  all  the  parties  had  expressly  or 
impliedly  admitted  the  fact  to  be  beyond  controversy 
when  such  adjudication  was  made;  and  this  is  the  view 
taken  by  the  greater  portion  of  the  American  courts.^ 
The   rule  that  a  judgment  is  conclusive   of  every  fact 

»  Reed  v.  Dousrlas,  74  Iowa,  244;  7  Marks  v.  Sigler,  3  Ohio  St.  358;  Mc- 

Am.  St.  Rep.  476.  Creery  v.  Fuller,  63  Cal.  30;  Nashville 

«  McLane  v.  Bovee,  35  Wis.  27;  Peo-  etc.  R.  R.  Co.  v.  U.  S.,  113  U.  S.  261; 

pie's  S.   B.    >;.   Hodgdon,   64  Cal.  95;  Brownzj.  Sprague,  5  Denio,  545;  Greeu- 

People  V.  Holladay,  OS  Cal.  439;  Hem-  wood  v.  New  Orleans,  12  La.  Ann.  426; 

mingway  v.  Drew,  47  Mich.  554.  Oregonian  R'y  Co.  v.  Oregon  R'y   & 

3  Garrard  v.  Dollar,  4  Jones,  175;  67  Nav.  Co.,  28  Fedv  Rep.  505;  Ebersole 

Am.  Dec.  271;  Green  v.  Hamilton,  16  v.    Lattimer,    65    Iowa,    164;    Orr  v. 

Md.  317;  77  Am.  Dec.  295;  Alabama  IMercer   County   Mut.  Fire   Ins.  Co., 

G.  S.  R.  R.  Co.  V.  South  etc.  R.  R.  Co.,  114  Pa.  St.  387;  Braddee  v.  Brownfield, 

84  Ala.  570;  5  Am.  St.  Rep.  401 ;  Mc-  4  Watts,  474;  Sacrist  v.  Zimmerman, 

Curdy  v.  Baughman,  43  Ohio  St.  78;  55  Pa.  St.  446;  GoflFr.  Dahbs,  4  Baxt. 

McCalley   v.    Wilburn,    77    Ala.   549;  300;  Twogood  r.  Pence,  22  Iowa,  543; 

Ligon   V.  Troplett,    12  B.   Mon.  283;  Barton  v.  Anderson,  104  lud.  578. 


§  330  THE   JUDGMENT   AS   AN    ESTOPPEL.  602 

necessary  to  uphold  it  admits  of  no  exceptions,  and  is 
equally  applicable,  whether  the  final  adjudication  resulted 
from  the  most  tedious  and  stubborn  litigation,  or  from  a 
suit  in  which  no  obstacle  was  presented  to  defeat  or  delay 
plaintiff's  recovery.'  A  judgment  by  default  is  "  attended 
with  the  same  legal  consequences  as  if  there  had  been  a 
verdict  for  the  plaintiff.  There  exists  no  solid  distinction 
between  a  title  confessed  and  one  tried  and  determined.'"' 
A  stipulation  between  the  parties  that  a  particular  kind 
of  judgment  may  be  entered,  while  it  ought  to  regulate 
the  entry,  has  no  subsequent  effect.  It  does  not  alter  the 
character  of  the  judgment  actually  entered,  even  if  the 
entry  be  different  from  that  provided  for  in  the  stipula- 
tion.^ In  cases  where  no  default  is  entered,  the  admis- 
sions made  by  either  of  the  parties,  whether  in  direct 
terms  or  by  failure  to  traverse  material  allegations  when 
called  upon  to  do  so,  are  as  conclusive  and  as  available  as 
a  bar  as  if  they  were  proved  by  witnesses.  An  admission 
by  way  of  a  demurrer  to  a  pleading  is  just  as  effective  in 
favor  of  the  opposite  party  as  though  made  ore  tenus  before 
a  jury.*  If  the  tenant,  in  a  writ  of  entry,  pleads  non- 
tenure, and  the  plea  is  admitted  by  the  plaintiff,  it  oper- 
ates as  an  estoppel  of  record  in  the  same  manner  and  to 
the  same  extent  as  if  found  by  a  jury.^  Also,  if  the  de- 
fendant interposes  a  good  plea  in  bar,  to  which  plaintiff 
makes  no  reply,  and  the  court  on  that  account  orders 

^  Judgment  by  default  or  consent  is  essential  to  plaintiff's  recovery.  Wad- 
binding  as  res  judicata:  Ellis  v.  Mills,  hams  v.  Gay,  73  111.  415,  shows  an  in- 
28  Tex.  584;  Fletcher  v.  Holmes,  25  clination  on  the  part  of  the  courts  of 
Ind.  458;  Dunn  v.  Pipes,  20  La.  Ann.  that  state  to  follow  the  English  de- 
276;  Derby  v.  Jacques,  1  Cliff.  425;  cisions,  and  to  deny  that  res  judicata 
Newton  v.  Hook,  48  N.  Y.  676;  Brown  can  arise  except  when  a  court  after 
V.  Mayor,  66  N.  Y.  385;  Jarvis  v.  argument  and  consideration  comes  to 
Driggs,  69  N.  Y.  143;  Doyle  v.  Hallam,  the  decision  of  a  contested  matter. 
21  Minn.  515;  Van  Valkenburgh  v.  *  Bradford  v.  Bradford,  5  Conn.  127; 
Milwaukee,  43  Wis.  574;  Blair  v.  Gates  v.  Preston,  41  N.  Y.  113;  Green 
Bartlett,  75  N.  Y.  150;  31  Am.  Rep.  v.  Hamilton,  16  Md.  317;  77  Am.  Dec. 
455.  In  the  case  last  cited  the  court  295;  note  270  to  Phillipps  on  E\d- 
emphasizes  the  fact  that  while  the  dence;  Gates  v.  Preston,  3  L.  T.  Rep. 
former  judgment  was  by  default,  yet  221. 

the  court  was,  notwithstanding  such  ^  Semple  v.  Wright,  32  Cal.  659. 
default,  required  to  take  testimony  *  Bouchaud  r.  D'as,  3  Denio,  243. 
and  to  have  proof  of  all  the  allegations        »  Hotchkiss  v.  Hunt,  56  Me.  252. 


603  THE    JUDGMENT   AS    AN    ESTOPPEL.  §  331 

judgment  to  be  entered  that  the  case  be  dismissed,  such 
judgment,  though  informal,  is  good  as  a  plea  in  bar.^ 
What  is  here  said  with  reference  to  the  effect  as  res  judi- 
cata of  a  judgment  entered  by  consent  or  upon  default 
must  be  considered  in  connection  with  the  limitations 
expressed  and  the  authorities  heretofore  cited,^  showing 
that  where  the  subject-matter  of  the  two  actions  are  dif- 
ferent, nothing  is  res  judicata  which  was  not  in  fact  pre- 
sented to  the  court  and  determined  in  the  former  action.' 
Irrespective  of  its  effect  as  res  judicata,  a  judgment  by 
consent  is  regarded  as  in  the  nature  of  a  contract  or  bind- 
ing obligation  between  the  parties  thereto,  which  neither, 
in  the  absence  of  fraud  or  mistake,  has  the  right  to  set 
aside  or  disregard,  and  which  as  against  each  is  a  waiver 
of  errors  and  irregularities;^  and  when  such  consent  judg- 
ment embraces  matters  or  extends  to  relief  not  involved 
within  nor  responsive  to  the  issues  in  the  case,  it,  with 
respect  to  such  matters  and  relief,  no  doubt  partakes  more 
of  the  character  of  a  voluntary  agreement  between  the 
parties  than  of  a  judgment  of  the  court  determining  a 
controversy  between  real  litigants.^ 

§  331.  English  Cases.  —  The  decisions  in  England  are, 
no  doubt,  somewhat  at  variance  with  those  in  this  country 
in  regard  to  the  effect  of  declining  to  traverse  a  material 
issue  tendered  by  the  opposite  party.  The  tendency  there 
is  to  confine  the  estoppel  to  matters  disputed.®  "A  party 
is  estopped  from  saying  that  any  issue  was  improperly 
decided,  but  he  is  not  estopped  in  a  future  action  by  an 
admission  on  the  record.  He  is  not  to  be  estopped  by  any 
matter  not  in  dispute,  and  upon  which  the  jury  never  gave 

1  Campbell  v.  Mayhugh,  15  B.  Mon.  Manks,  1  Cow.  709;  Bradish  v.  Gee, 

145.  Amb.  229. 

'^  See  sec.  253.  *  Vermont   etc.  R.  R.    Co.  v.  Ver- 

» Adams   v.    Adams,    25   Minn.  72;  mont    etc.    R.    R.    Co.,    50   Vt.    500. 

Colwell  V.  Bleadley,  1  Abb.  App.  400.  Consent  judgments  do  not  bind  tliird 

♦  Jones  V.  Webb,  8  S.  C.  202;  Man-  persons:  Carroll  v.  Hamilton,  30  La. 

nion  V.  Fahy,  11  W.  Va.  482;  Collins  Ann.  520. 

V.  Rose,  59  Ind.  33;  Allen  r.  Richard-  *  Jenkins  v.  Roberton,  L.  R.  1  H.  L. 

son,  9  Rich.  Eq.  53;  French  v.   Shot-  S.  177.     See  also  (ioucher  v.  Clayton, 

well,  5  Johns.  Ch.  504;   Atkinson  v.  11  Jur.,  N.  S.,  107. 


§  331  a  THE    JUDGMENT    AS    AN    ESTOPPEL.  604 

judgment." '  A  lessee  was  sued  upon  a  lease,  and  made 
an  ineffectual  defense.  Afterward,  being  sued  for  subse- 
quently accruing. rent  under  the  same  lease,  he  answered 
that,  prior  to  the  former  action,  the  lease  had  been  an- 
nulled by  an  agreement  between  the  parties  substituting 
another  and  different  lease  in  its  stead.  This  defense  was 
not  suggested  in  the  prior  suit,  though  as  available  in 
that  as  in  the  second.  The  former  judgment  was  decided 
to  be  no  bar  to  this  defense.  The  grounds  of  this  decision 
were,  that  a  default  or  an  admission  by  neglect  to  traverse 
in  an  action  upon  any  contract  admits  nothing  but  the 
execution  of  the  contract,  and  leaves  the  defendant  at 
liberty  to  show,  in  a  future  action,  any  defense  arising 
under  the  contract  since  its  execution,  and  that  "nobody 
ever  heard  of  a  defendant  being  precluded  from  setting 
up  a  defense  in  a  second  action  because  he  did  not  avail 
himself  of  the  opportunity  of  setting  it  up  in  the  first 
action."  We  submit,  however,  that  this  position  is  clearly 
untenable.  The  judgment  in  the  first  action,  being  for 
rent  upon  a  lease,  could  only  be  supported  by  a  valid 
lease  existing  in  full  force  until  and  including  the  latest 
period  of  time  for  which  rent  was  allowed.  The  judgment 
for  defendant  in  the  second  action  could  only  be  upheld, 
under  the  issues  made  in  that  action,  on  the  ground  that 
the  lease  was  inoperative  during  the  time  for  which  rent 
was  recovered  on  it  in  the  first  action.  It  is  impossible 
that  the  second  judgment  was  not  in  utter  disregard  of 
the  first,  when  the  facts  necessary  to  uphold  the  one  are 
irreconcilable  with  the  facts  necessary  to  uphold  the  other. 

§  331  a.  Disclaimer. — The  defendant  in  a  real  action 
or  an  action  to  recover  possession  of  or  to  determine  con- 
flicting claims  to  real  property  may,  instead  of  permitting 
judgment  to  be  entered  against  him  by  default,  file  a  dis- 
claimer.    Such  disclaimer  does  not  operate  as  a  convey- 

'  Carter  v.  James,  2  Dowl.  &  L.  236.  See,  coritra,  Boileau  v.  Rutlin,  2  Ex. 
665,  681. 


605  THE    JUDGMENT    AS    AN    ESTOPPEL.  §  332 

ance  from  him  to  the  plaintiff  so  as  to  transfer  his  title 
to  the  latter  and  to.  enable  him  thereupon  to  recover  of 
another  defendant  upon  the  title  of  the  defendant  who 
has  disclaimed/  At  the  common  law,  no  judgment  what- 
ever could  be  entered  after  the  tenant  had  disclaimed. 
Under  the  present  practice,  if  the  defendant  did  not  at 
the  commencement  of  the  action  claim  any  interest  in 
the  property,  nor  hold  possession  of  any  part  thereof,  he 
is  generally  entitled  to  judgment  for  his  costs,  while, 
on  the  other  hand,  if  he  did  in  fact  make  such  adverse 
claim,  or  withhold  from  plaintiff  any  part  of  the  property, 
the  plaintiff  is  entitled  to  judgment  for  the  relief  prayed 
for  in  his  complaint  and  costs.  But  whether  the  action 
is  terminated  by  the  disclaimer,  or  results  in  a  judgment 
in  favor  of  the  defendant  for  his  costs,  founded  upon  his 
having  filed  such  disclaimer,  the  defendant  is  estopped 
from  asserting  title  to  any  part  of  the  land  held  by  him 
at  the  commencement  of  the  action  in  which  he  dis- 
claimed.2  -pj^^g  result  appears  to  follow  the  filing  of  the 
disclaimer  and  to  exist  anterior  to  the  entry  of  judgment. 
Hence  where  the  defendant  disclaimed  as  to  part  of  the 
land  sued  for  and  defended  as  to  the  residue,  and  in 
making  his  defense  proved  that  the  conveyance  of  the 
whole  tract  to  plaintiff  was  forged,  it  was  held  that  the 
plaintiff  was  entitled  to  judgment  and  to  a  writ  of  posses- 
sion against  defendant  for -the  land  disclaimed.' 

§  332.  Last  Judgment  Prevails.  —  Rights  acquired  by 
virtue  of  a  judgment  or  decree  are  liable  to  be  terminated 
in  the  same  manner.  Thus  if  two  Mexican  grants  are  so 
confirmed  at  different  dates  that  the  same  land  is  included 
in  both  decrees,  and  the  confirmee  of  the  first  grant,  being 
a  party  to  the  second  confirmation,  fails  to  assert  the 
former  decree  in  his  favor  as  a  bar,  his  rights  will  be 

>  Currier   v.    Esty,    116   Mass.  577;  Wonters  t.  Hall,  67  Tex.  513;  Jordan 

Oakham  u  Hall,  112  Mass.  535.  v.    Stevens,    55    Mo.    361;     Dodge   v. 

2  Hamilton  v.  Elliott,  4  N.  H.   182.;  Richardson,  70  Tex.  209. 

Prescott  V.  Hutchinson,  13  Mass.  439;  »  Dodge  v.  Richardson,  70  Tex.  209. 


§  333  THE    JUDGMENT   AS    AN    ESTOPPEL.  606 

divested  by  the  second  decree.^  So  where  A  foreclosed  a 
mortgage,  making  B  a  party  to  the  suit  as  a  subsequent 
encumbrancer,  and  obtained  a  decree  against  B  as  such, 
and  B  afterwards  foreclosed  his  mortgage,  making  A  a 
party  as  a  subsequent  encumbrancer,  and  also  obtained  a 
decree,  it  was  decided  that  if  A  wished  to  avail  himself 
of  his  decree,  he  should  have  set  it  up  in  the  second  ac- 
tion, and  that,  not  having  done  so,  his  rights  under  it 
were  lost.^  Upon  the  same  principle,  it  has  been  held 
that  one  released  from  his  debts  by  the  operation  of  a 
discharge  in  bankruptcy  cannot  urge  such  discharge 
against  a  judgment  entered  in  an  action  in  which  the 
discharge  might  have  been  presented  as  a  defense.^ 

The  principle  that  as  betw^een  two  conflicting  adjudica- 
tions the  last  must  control  must  be  limited  to  cases  in 
which  the  court  had  authority  to  pronounce  it.  Where, 
for  instance,  the  state  and  national  courts  have  concur- 
rent jurisdiction  of  a  controversy,  and  the  latter  are  re- 
sorted to  first,  they  have  the  right  to  continue  to  exercise 
their  jurisdiction  to  final  judgment,  and  such  judgment 
when  recovered  is  probably  paramount  to  any  judgment 
subsequently  recovered  in  a  state  court  determining  the 
same  controversy.* 

§  333.  Reversal.  —  The  reversal  of  a  judgment  is  a 
complete  extinguishment  of  the  estoppel.  It  may  still 
have  effect  as  a  muniment  of  title  in  favor  of  a  purchaser 
under  it;  but  this  benefit  does  not  extend  to  any  collateral 
fact  found  by  the  verdict  or  judgment.^  A  judgment  va- 
cated or  set  aside  is  no  longer  a  bar,®  and  if  a  decree  of 
divorce  is  annulled,  the  marital  rights,  obligations,  and 
status  of  the  parties  are  revived,  although  one  of  them 
has  in  the  mean  time  married  and  borne  children  of  the 
last  marriage.^ 

J  Semple  v.  Wright,    32    Cal.    659;  *  Wood  v.  Jackson,  8  Wend.  9;   22 

Semple  v.  Ware,  4i2  Cal.  619.  Am.  Dec.  603. 

2  Cooley  V.  Brayton,  16  Iowa,  10.  «  Taylor  v.  Smith,  4  Ga.  133. 

»  Rahm  v.  Minis,  40  Cal.  421;  Marsh  "  Comstock  v.  Adams,  12  Chic.  L.  N. 

V.  Mandeville,  28  Miss.  122.  359. 

*  Sharon  v.  Sharon,  84  Cal.  424. 


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